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THE  ADOPTION  OF 
THE  FOURTEENTH  AMENDMENT 


BY 

HORACE  EDGAR  FLACK 


»s. 


OF  THE 

UNfVERSlTY 

OF 


A  DISSERTATION 

Submitted  to  the   Board  of  University   Studies  of  The   Johns 

Hopkins  University  in  conformity  with  the  requirements 

for  the  degree  of   Doctor  of   Philosophy 

1906 


BALTIMORE 
1908 


\ls>'^ 


Copyright  1908  by 
THE  JOHNS  HOPKINS  PRESS 


^^W 


Press  of 

The  New  era  Printing  company 

Lancaster,  pa. 


CONTENTS. 

Page 

Preface  7 

Chapter. 

I.    The  Freedmen's  Bureau  and  Civil  Rights 

Bills 11 

II.    The  Amendment  Before  Congress 55 

Section  One  of  the  Amendment 55 

Section  Two  of  the  Amendment 97 

Section  Three  of  the  Amendment 127 

Section  Four  of  the  Amendment 133 

Section  Five  of  the  Amendment 136 

III.  The  Amendment  Before  the  People 140 

IV.  The  Amendment  Before  the  States 161 

V.     Congressional    Interpretation    of   Amend- 
ment      210 

ppendix  :  Text  of  the  War  Amendments 278 


202689 


OF  THE 

UNIVERSITY 

OF 


PREFACE. 


The  Supreme  Court  of  the  United  States,  in  the  Slaugh-    ^ 
ter  House  Cases,  declared  that  the j)rivileges„aiidJmmmii=  - . 
ties  of  citizens  guaranteed  by  the  Fourteenth  Amendment 
are  those  which   they  possess  as  citizens   of  the  United 
States  and  not  those  which  they  enjoy  by  virtue  of  state 
citizenship.  ^  This  decision  means  that  those  privileges  and 
immunities  which  flow  from  state  citizenship  must  rest  for 
their  security  and  protection  where  they  have  heretofore 
rested,  namely,  upon  the  States.     In  Maxwell  vs.  Dow  the- 
Court  declared  that  the  privileges  and  immunities  of  citi-'^ 
zens  of  the  United  States  do  not  include  those  enumerated- 
in,  and  secured  against  violation  on  the  part  of  the  Central  - 
Government  by  the  first  eight  Amendments  to  the  Federal 
Constitution.     The  same  Court,  in  the  Civil  Rights  Cases, 
declared  that  Congress  cannot  enact  direct,  affirmative  leg- 
islation for  the  enforcement  of  the  Fourteenth  Amendment 
and  can  enact  only  remedial  legislation.' 

The  decisions  in  the  above  cases  have  given  to  the  Four- 
teenth Amendment  a  meaning  quite  different  from  that 
which  many  of  those  who  participated  in  its  drafting  and 
ratification  intended  it  to  have.  The  decisions  in  the 
Slaughter  House  and  Civil  Rights  Cases  especially  have 
been  criticized  on  this  ground.  Treatises  have  been  writ- 
ten on  the  judicial  construction  of  the  Amendment,  but 
thus  far  no  effort  has  been  made  to  give  anything  like  a 
complete  or  exhaustive  study  of  the  historical  incidents 
connected  with  its  proposal  and  adoption.  An  examination, 
therefore,  of  the  circumstances  under  which  this  addition 
to  our  fundamental  instrument  of  government  was  made, 
and  the  discovery  from  them,  if  possible,  of  the  desires  and 
expectations  of  its  framers  and  supporters,  becomes  an 
interesting  and  important  constitutional  inquiry.     This  has 

7 


8  Preface. 

also  necessitated  an  examination  of  the  legislation  preced- 
ing the  proposal  of  the  Amendment  and  that  enacted  for 
its  enforcement.  The  purpose  of  this  study  is  to  pass  his- 
torical judgment  as  to  the  purpose  and  object  of  the 
Amendment,  the  powers  intended  to  be  granted  to  the 
Federal  Government  as  well  as  those  to  be  prohibited 
the  States,  and  not  to  pass  political  judgment.  Further- 
more, it  is  not  the  purpose  of  the  study  to  consider  the 
effect  of  the  limited  construction  given  the  Amendment, 
but  unquestionably  it  has  had  the  effect  of  preserving  our 
dual  form  of  government  as  established  by  the  Constitution 
of  1789,  and,  although  the  Federal  Government  has  to-day, 
under  the  Fourteenth  Amendment,  greater  powers  than  it 
possessed  under  the  old  Constitution,  there  has  been  no 
revolutionary  change  in  the  respective  powers  of  the  States 
and  the  General  Government.  Those  who  believe  this  dual 
form  of  Government  best,  all  things  being  considered,  must 
thank  the  Judicial,  and  not  the  Legislative,  Department  for 
preserving  it.  No  opinion  has  been  expressed  as  to  whether 
the  limited  construction  given  the  Amendment  has  been  or 
will  be  to  the  best  interests  of  the  country,  but  the  assertion 
may  be  ventured  that  the  South  has  welcomed  the  position 
taken  by  the  Supreme  Court. 

The  chief  sources  used  have  been  the  Congressional 
Globe  and  Record,  the  Reports  of  Committees,  especially 
those  of  the  Reconstruction  Committee,  the  Journal  of  the 
Reconstruction  Committee,  the  Journals  and  Reports  of  the 
Legislatures  of  the  several  States,  and  contemporary  news- 
papers. References  to  other  sources  will  be  found  in  the 
foot-notes.  It  may  be  said  that  the  Journal  of  the  Recon- 
struction Committee  has,  for  the  first  time,  been  used  to 
any  considerable  extent  in  connection  with  a  study  of  the 
Fourteenth  Amendment. 

The  first  eleven  Amendments  to  the  Constitution  of  the 
United  States  were  intended  as  checks  or  limitations  on  the 
Federal  Government  and  had  their  origin  in  a  spirit  of 
jealousy  on  the  part  of  the  States.    This  jealousy  was 


Preface.  g 

largely  due  to  the  fear  that  the  Federal  Government  might 
become  too  strong  and  centralized  unless  restrictions  were 
imposed  upon  it.  The  War  Amendments  marked  a  new 
departure  and  a  new  epoch  in  the  constitutional  history  of 
the  country,  since  they  trench  directly  upon  the  powers  of 
the  States,  being  in  this  respect  just  the  opposite  of  the 
early  Amendments.  Since  reference  is  made  so  frequently 
to  the  War  Amendments,  it  has  been  thought  advisable  to 
publish  them  in  the  Appendix. 

The  writer  is  greatly  indebted  to  Prof.  W.  W.  Wil- 
loughby,  of  the  Johns  Hopkins  University,  at  whose  sug- 
gestion this  study  was  begun  and  whose  counsel  and  advice 
have  been  invaluable  during  its  preparation. 
Department  of  Legislative  Reference, 
Baltimore,  Md.,  Sept.,  1908. 


THE  ADOPTION  OF  THE  FOURTEENTH 
AMENDMENT. 


CHAPTER   I. 
The  Freedmen's  Bureau  and  Civil  Rights  Bills. 

To  get  at  the  basis  of  the  Fourteenth  Amendment,  to 
grasp  its  true  meaning  and  purpose,  as  well  as  to  under- 
stand the  object  of  its  framers  and  of  the  people,  it  is 
necessary  to  analyze  the  legislation  which  preceded  and 
followed  the  adoption  of  the  Amendment,  the  causes  or 
alleged  causes  which  led  to  such  legislation  and  to  the  pro- 
posal and  adoption  of  the  Amendment.  The  legislation 
preceding  the  adoption  of  the  Amendment  will  probably 
give  an  index  to  the  objects  Congress  was  striving  to  obtain, 
or  to  the  evils  for  which  a  remedy  was  being  sought,  while 
the  legislation  which  followed  its  adoption  will  give  at  least 
a  partial  interpretation  of  what  Congress  thought  the 
Amendment  meant  and  what  things  or  subjects  it  included. 
This  legislation,  together  with  the  debates  in  Congress, 
while  being  considered  by  that  body,  as  well  as  the  debates 
on  the  Amendment  itself,  should  afford  us  sufficient  mate- 
rial and  facts  on  which  to  base  a  fairly  accurate  estimate 
of  what  Congress  intended  to  accomplish  by  the  Amend- 
ment. In  fact,  a  careful  analysis  of  these  measures  and 
debates  should  enable  us  to  state  with  as  much  certainty  as 
most  conclusions  are  stated  just  what  object  or  objects  Con- 
gress and  the  framers  of  the  Amendment  had  in  view  in 
submitting  it  to  the  States  for  ratification.  As  to  what  the 
people  or  the  States  thought  of  it,  will  be  considered  in  a 
later  chapter. 

A  caucus  of  the  Republican  members  of  the  House  was 


12  Adoption   of   the  Fourteenth  Amendment. 

held  on  Saturday,  December  2,  1865.  Thaddeus  Stevens, 
by  tacit  consent,  assumed  the  leadership  and  submitted  the 
following  plan  to  the  caucus :  ( i )  To  claim  the  whole  ques- 
tion of  reconstruction  as  the  exclusive  business  of  Congress. 
(2)  To  regard  the  steps  that  had  already  been  taken  by  the 
President  for  the  restoration  of  the  Confederate  States  as 
only  provisional,  and,  therefore,  subject  to  revision  or  re- 
versal by  Congress.  (3)  Each  House  to  forego  the  exer- 
cise of  its  function  of  judging  of  the  election  and  qualifi- 
cations of  its  own  members  in  case  of  those  elected  by  the 
Southern  States.  This  plan  was  accepted  without  objec- 
tion. The  caucus  also  directed  the  clerk  of  the  House  to 
omit  from  the  roll  all  members  from  the  Southern  States 
and  ordered  that  a  joint  resolution  for  the  appointment  of 
a  joint  committee  of  fifteen  be  introduced.  This  committee 
was  "  to  inquire  into  the  conditions  of  the  States  which 
formed  the  so-called  Confederate  States  of  America,  and 
report  whether  they  or  any  of  them  are  entitled  to  be  rep- 
resented in  either  House  of  Congress,"  and  providing  that 
"  until  such  report  be  made  and  acted  upon  by  Congress  no 
member  from  such  States  be  received  into  either  House." 
This  programme  was  carried  out  in  the  House  on  the  fol- 
lowing Monday.^ 

This  caucus  and  its  programme  were  but  foreshadowing 
the  struggle  that  was  to  take  place  between  the  President 
and  Congress  over  the  question  of  reconstruction. 
-^  The  Freedmen's  Bureau  Bill  is  the  first,  in  point  of  time, 
of  the  efforts  of  Congress  to  reconstruct  the  Southern 
States.  The  original  bill  was  enacted  March  3,  1865,  and 
was  to  expire  one  year  after  the  termination  of  hostilities. 
Its  object  was  to  protect  and  support  the  freedmen  who 
were  within  the  territory  controlled  by  the  Union  forces. 

The  Thirty-ninth  Congress  assembled  in  December,  1865, 
and  on  January  5,  1866,  Mr.  Trumbull  introduced  a  bill  to 
enlarge  the  powers  of  the  Freedmen's  Bureau.  This  bill 
was  referred  to  the  Judiciary  Committee  of  the  Senate,  of 

^Dewitt,  The  Trial  and  Impeachment  of  Andrew  Johnson,  pp. 
27-28,  and  the  Congressional  Globe,  ist  Sess.,  39th  Cong.,  pp.  5-6. 


Freedmen's  Bureau  and   Civil  Rights  Bills.         13 

which  Mr.  Trumbull  was  chairman,  from  which  it  was 
reported  back  six  days  later  with  amendments.  Aside  from 
the  subject-matter  of  this  bill,  its  consideration  is  very 
important  as  showing  the  feelings  and  tendencies  of  Con- 
gressmen near  the  opening  of  the  session,  the  gradual  weak- 
ening of  the  conservatives,  and  their  final  union  with  the 
Radicals, 

The  bill,  as  reported  from  the  committee  by  Mr.  Trum- 
bull, consisted  of  eight  sections,  the  seventh  and  eighth  of 
which  are  of  importance  to  us.  The  other  sections  author- 
ized the  President  to  divide  the  country  into  districts,  to 
appoint  commissioners,  to  reserve  from  sale  or  settlement 
certain  public  lands  in  Florida,  Mississippi  and  Arkansas, 
which  were  to  be  allotted  to  the  loyal  refugees  and  freed- 
men  in  parcels  not  exceeding  forty  acres,  and  to  direct  the 
commissioners  to  purchase  sites  or  buildings  for  schools  and 
asylums. 

/  The  seventh  section,  which  is  of  greatest  importance, 
'declares  it  to  be  the  duty  of  the  President  to  extend  military 
protection  and  jurisdiction  over  all  cases  wher.e_  anyi.of  the 
civil  rights  or  immunities  belonging  to  white  persons  (in- 
cluding the  right  to  make  and  enforce  contracts,  to  sue, 
be  parties,  and  give  evidence,  to  inherit,  purchase,  sell,  hold 
and  convey  real  and  personal  property,  and  to  have  the  full 
and  equal  benefit  of  all  laws  and  proceedings  for  the  secur- 
ity of  person  and  estate)  are  refused  or  denied,  in  conse- 
quence of  local  law,  customs  or  prejudice,  on  account  of 
race,  color,  or  previous  condition  of  servitude,  or  where 
different  punishments  or  penalties  are  inflicted  than  are 
prescribed  for  white  persons  committing  like  offenses.  J 

The  eighth  section  was  punitive  in  its  nature,  making  it 
a  misdemeanor,  punishable  by  a  fine  of  $1000,  or  imprison- 
ment for  one  year,  or  both,  for  any  one  to  deprive  another 
of  any  of  the  rights  enumerated  in  the  preceding  section 
on  account  of  race,  color,  or  previous  condition  of  servi- 
tude. These  two  sections  of  the  bill  were  only  to  apply  to 
those  States  or  districts  in  which  the  ordinary  course  of 
judicial  proceedings  had  been  interrupted  by  the  war.     The 


14         Adoption   of  the  Fourteenth  Amendment. 

officers  and  agents  of  the  Bureau  were  to  hear  and  deter- 
mine all  offenses  committed  against  the  provisions  of  this 
section,  as  well  as  all  cases  where  there  was  discrimination 
on  account  of  race  or  color,  under  such  rules  and  regula- 
tions as  the  President,  through  the  War  Department,  might 
prescribe.^ 

(The  whole  bill  may  be  said  to  be  a  war  measure,  though 
applicable  in  time  of  peace,  for  military  officers  were  to  be 
put  in  charge  of  the  districts.  There  seems  to  be  little 
doubt  but  that  it  was  unconstitutional  and  that  it  could 
scarcely  be  justified  even  as  a  war  measure/  The  measure 
was  unwise  and  inexpedient  to  say  the  least  of  it,  for  it 
petarded  rather  than  aided  reconstruction. 
'/  Besides  providing  for  military  courts,  the  bill  took  from 
the  States  matters  which  the  States  and  local  communities 
had  up  to  that  time  entirely  controlled,  for  never  before  had 
the  Federal  Government  interfered  or  attempted  to  inter- 
fere with  the  rights  of  the  States  to  determine  who  should 
be  qualified  to  make  and  enforce  contracts,  sue  and  be  sued, 
five  testimony,  inherit,  e^. 

It  was  claimed  that  th6  second  section  of  the  Thirteenth 
Amendment  gave  Congress  the  power  to  do  anything  to 
secure  to  the  f  reedmen  all  the  civil  rights  that  were  secured 
to  white  men.  Mr.  Hendricks,  of  Indiana,  denied  that  con- 
struction, holding  that  no  new  rights  were  conferred  upon 
freedmen,  and  that  the  only  effect  of  the  Amendment  was 
to  break  the  bonds  which  bound  the  slave  to  his  master. 
He  also  contended  that  the  laws  of  Indiana,  which  did  not 
permit  negroes  to  acquire  real  estate,  make  contracts,  or  to 
intermarry  with  whites,  would  practically  be  annulled  by 
the  bill,  since  they  were  civil  rights.  He  also  regarded  the 
right  to  sit  on  a  jury  as  a  civil  right.^ 

Mr.  Trumbull,  replying  to  Mr,  Hendricks,  said  that  the 
provisions  of  this  bill  which  would  interfere  with  the  laws 
of  Indiana  could  have  no  operation  there,  since  the  ordi- 

*  Globe,  39th  Cong.,  1st  Sess.,  pp.  209-10. 
■Ibid.,  p.  318. 


Freedmen's  Bureau  and  Civil  Rights  Bills.        15 

nary  course  of  judicial  proceedings  had  not  been  inter- 
rupted. He  held,  however,  that  the  second  section  of  the 
Thirteenth  Amendrnent  was  adopted  for  the  purpose  of 
giving  Congress  power  to  pass  laws  destroying  all  discrim- 
inations in  civil  rights  against. th?._ black  man.  He  denied 
that  the  bill  interfered  with  the  laws  against  the  amalgama- 
tion of  the  races,  since  they  equally  forbade  the  white  man 
to  marry  a  negro.  While  this  bill  was  to  be  temporary,  he 
stated  that  the  Civil  Rights  Bill,  which  was  then  before 
Congress,  was  intended  to  be  permanent  and  to  extend  to 
all  parts  of  the  country.  It  was  incumbent  on  Congress, 
he  declared,  to  secure  this  protection  if  the  States  would 
not.* 

Senator  Wilson,  of  Massachusetts,  who  later  became 
Vice  President  under  General  Grant,  pointed  to  the  fact 
that  the  laws  of  many  of  the  Southern  States  were  incon- 
sistent with  freedom,  and  that  the  Civil  Rights  Bill  was  to 
annul  the  black  codes  and  put  all  under  the  protection  of 
equal  laws.'  Mr.  Davis  tried  to  amend  the  bill  to  secure 
an  appeal  from  the  decision  of  the  agents  of  the  bureau  to 
the  courts,  but  all  his  amendments  were  rejected.^  He  also 
held  that  the  bill  was  unconstitutional  in  that  it  invested 
the  bureau  with  judicial  powers,  these  powers  to  be  exer- 
cised by  army  officers,  and  that  it  deprived  the  citizen  of 
his  right  to  trial  by  jury  in  civil  cases  contrary  to  the  Sev- 
enth Amendment  to  the  Constitution.  He  agreed  with  Mr. 
Hendricks  as  to  its  effect  on  the  laws  against  the  intermar- 
riage of  the  races,  and  predicted  that  the  Southern  States 
would  be  kept  out  until  Congress  had  passed  some  obnox- 
ious amendments,  had  conferred  suffrage  on  the  negroes  in 
the  District  of  Columbia,  had  irnposed  the  .sartt&jg!ji.ious  prin- 
ciple _on  the  South  .which  most,  of  the  Nortiiern  States 
rejected  with  scorn,  and  had  enacted  the  Freedmen's  Bureau 
and  Civil  Rights  Bills.'' 

*Ibid.,  pp.  321-323. 
"Ibid.,  p.  340. 
'Ibid.,  pp.  399-400. 
'Ibid.,  pp.  415-19- 


i6  Adoption   of   the  Fourteenth  Amendment. 

The  bill  was  passed  in  the  Senate,  January  25,  1866,  by 
^  vote  of  37  to  10,  the  vote  being  strictly  partisan.^ 
^  The  bill  was  then  debated  in  the  House  at  considerable 
length.  Mr.  Dawson,  of  Pennsylvania,  in  opposing  it, 
stated  that  he  regarded  the  privileges  or  rights  secured  by 
the  Fourth,  Fifth  and  Sixth  Amendments  as  the  birthright 
of  every  American.  He  asserted  that  the  Radicals  held  that 
both  races  were  equal,  socially  and  politically,  and  that  this 
involved  the  same  rights  and  privileges  at  hotels,  in  railway 
cars,  in  churches,  in  schools,  the  same  right  to  hold  office, 
to  sit  on  juries,  to  vote,  to  preside  over  courts,  etc.®  While 
this  interpretation  probably  could  not  be  given  to  the  bill 
itself,  it  shows  what  some  of  the  minority  thought  and  felt 
to  be  the  inevitable  result  of  the  doctrines  enunciated  by 
the  radical  leaders,  and  as  will  be  seen  later,  these  very 
principles  were  finally  incorporated  into  the  laws  of  the 
Federal  Government  by  the  party  and  men  who  denied  hav- 
ing any  such  intentions./ 

Mr.  Kerr,^**  of  Indiana,  and  Mr.  Marshall,  of  Illinois, 
were  of  the  opinion  that  the  Thirteenth  Amendment  did  not 
authorize  the  bill.  The  latter  asserted  that  if  the  bill  were 
carried  out,  it  would  be  in  the  power  of  the  Federal  Gov- 
ernment to  establish  military  tribunals  in  every  State  where 
there  was  discrimination  against  negroes.  He  regarded 
the  right  to  sit  on  juries,  to  marry,  and  to  vote  as  civil 
rights,  and  which  could  not,  therefore,  be  denied  on  account 
of  race  or  color.^^ 

Mr.  Rousseau,  of  Kentucky,  said  that  under  the  opera- 
tion of  the  bill  a  minister  refusing  to  marry  a  negro  and 
white  person  would  be  committing  a  criminal  act  and  con- 
sequently would  be  subject  to  the  penalty  imposed  by  the 
eighth  section.  He  also  declared  that  it  gave  negroes  the 
same  privileges  in  railway  cars  and  theaters,  and  that  there 
would  be  mixed  schools  where  it  was  in  operation.  He 
cited  a  letter  from  Charleston  to  show  that  he  was  right  in 

'  Ibid.,  p.  421. 
•Ibid.,  p.  541. 
"Ibid.,  p.  623. 
"Ibid.,  pp.  628-29. 


I 


Freedmen's  Bureau  and  Civil  Rights  Bills.         ly 

regard  to  schools,  and  declared  that  no  one  could  success- 
fully combat  his  position,  and,  though  he  was  interrupted 
several  times,  no  one  questioned  his  statements  in  regard 
to  these  things. ^^ 

Mr.  Moulton  held  that  the  right  to  sit  on  juries  and  the 
right  to  marry  were  not  civil  rights,  but  Mr.  Thornton  of 
the  same  State  thought  otherwise.^^  Mr.  Grinnell,  of  Iowa, 
seemed  to  regard  the  right  to  bear  arms  as  a  civil  right,  for 
in  giving  evidence  to  show  that  the  bill  was  needed  in  Ken- 
tucky, he  pointed  to  the  fact  that  negroes  were  not  allowed 
to  keep  a  gun,  to  sit  on  the  jury,  or  to  vote.^*  J^r.  JEliot, 
of  Massachusetts,  who  had  charge  of  the  bill  in  the  House, 
moved  an  amendment  to  the  seventh  section  by  inserting  as 
one  of  the  rights  to  which  negroes  were  entitled  "  the  con- 
stitutional right  to  bear  arms."  ^°  Since  the  House  adopted 
this  amendment,  which  was  also  concurred  in  by  the  Sen- 
ate, it  is  evident  that  the  right  to  bear  arms  ^as  regarded 
as  one  of  the  rights  pertaining  to  citizens,  and  as  this  right 
is  secured  by  the  Second  Amendment,  i^:  m^y  reasonably  be 
ig.(erred  that  the  other^  rijgli.t§^^jj4,45-rivileges^  secured^gr 
enumerated  By"  the  first  eight  Amendments  were  also,  re- 
garded as  belonging  to  all  persons.  The  bill  passed  the 
House  February  6,  1866,  by  a  vote  of  136  to  33^® — only 
one  Republican  (from  Missouri)  voting  in  the  negative. 

When  the  bill  was  again  before  the  Senate,  with  the 
House  amendments,  Mr.  Trumbull  remarked  that  the 
amendment  as  to  the  right  to  bear  arms  did  not  alter  the 
meaning  of  the  section.  That  is,  that  the  right  to  bear 
arms  being  a  civil  right  secured  by  the  Constitution  would 
have  been  secured  to  the  negroes  by  the  bill  in  its  original 
fprm.^^ 

//'On  February  19,  the  President  returned  the  bill  to  the 
Senate   with   a   veto   message.     He   thought   it   not   only 


"  Ibid.,  Appendix,  pp.  69-71. 
"Ibid.,  p.  632. 


lUlU.,  p.    UJ^. 

"Ibid.,  p.  651, 

"Ibid.,  p.  654. 

"Ibid.,  p.  688. 

"Ibid.,  p.  743 


1 8  Adoption   of  the  Fourteenth  Amendment. 

inconsistent  with  the  pubHc  welfare  and  unconstitutional 
in  certain  provisions,  but  also  obnoxious  in  that  it  did 
not  define  the  civil  rights ,  and  immunities  to  be  secured 
to  the  freedmen  by  it.^*/  Messrs.  Davis  and  Trumbull 
were  the  only  Senators  Who  spoke  on  the  veto.  The  for- 
mer, in  supporting  it,  declared  that  the  intermarriage  of 
the  races,  commingling  in  hotels,  theaters,  steamboats,  and 
other  civil  rights  and  privileges,  had  always  been  denied 

"  Ibid.,  p.  916.  Among  other  things  he  declared :  "  I  share  with 
Congress  the  strongest  desire  to  secure  to  the  freedmen  the  full 
enjoyment  of  their  freedom  and  property,  and  their  entire  inde- 
pendence and  equality  in  making  contracts  for  their  labor;  but 
the  bill  before  me  contains  provisions  which,  in  my  opinion,  are 
not  warranted  by  the  Constitution,  and  are  not  well  suited  to  ac- 
complish the  end  in  view.  ...  In  those  eleven  States,  the  bill 
subjects  any  white  person  who  may  be  charged  with  depriving  a 
freedman  of  *  any  civil  rights  or  immunities  belonging  to  white 
persons '  to  imprisonment,  or  fine,  or  both,  without,  however,  de- 
fining the  '  civil  rights  and  imraunities '  which  are  thus  to  be  se- 
cured to  the  freedman  by  military  law.  .  .  . 

"  The  trials,  having  their  origin  under  this  bill  are  to  take  place 
without  the  intervention  of  a  jury,  and  without  any  fixed  rules 
of  law  or  evidence.  The  rules  on  which  offenses  are  to  be  heard 
and  determined  by  the  numerous  agents  are  such  rules  and  regu- 
lations as  the  President,  through  the  War  Department  shall  pre- 
scribe. No  previous  presentment  is  required,  nor  any  indictment 
charging  the  commission  of  a  crime  against  the  laws;  but  the 
trial  must  proceed  on  charges  and  specifications.  The  punishment 
will  be — not  what  the  law  declares,  but  such  as  a  court-martial  may 
think  proper;  and  from  these  arbitrary  tribunals  there  lies  no 
appeal,  no  writ  of  error  to  any  of  the  courts  in  which  the  Con- 
stitution of  the  United  States  vests  exclusively  the  judicial  power 
of  the  country."  This  system  of  military  jurisdiction,  he  said, 
could  not  be  reconcile  I  with  the  Fifth  and  Sixth  Amendments  to 
the  Constitution  of  the  United  States. 

In  his  second  veto  of  the  bill,  July  16,  1866,  the  President  re- 
affirmed the  objections  given  in  his  veto,  February  19,  and  referred 
to  the  Civil  Rights  Bill  which  had  been  passed  over  his  veto,  April 
9,  as  a  further  reason  against  the  necessity  of  the  bill.  In  reference 
to  the  Civil  Rights  Bill,  he  declared :  "  By  the  provisions  of  the  act 
full  protection  is  afforded  through  the  district  courts  of  the  United 
States,  to  all  persons  injured  and  whose  privileges,  as  thus  declared, 
are  ^  in  any  way  impaired ;  and  heavy  penalties  are  denounced 
against  the  person  who  wilfully  violates  the  law.  I  need  not  state 
that  that  law  did  not  receive  my  aooroval;  yet  its  remedies  are  far 
more  preferable  than  those  proposed  in  the  present  bill,  the  one  be- 
ing civil  and  the  other  military." 

In  reference  to  that  part  of  the  bill  which  made  it  possible  for  a 
man  to  be  'deprived  of  his  property  contrary  to  the  Fifth  Amend- 
ment, he  said :  "  As  a  general  principle,  such  legislation  is  unsafe, 
unwise,  partial  and  unconstitutional."  McPherson's  Reconstruc- 
tion, p.  147, 


Freedmen's  Bureau  and  Civil  Rights  Bills.         19 

the  free  negroes,  until  Massachusetts  had  recently  granted 
them.^*  Mr.  Trumbull  spoke  quite  at  length  in  opposition 
to  the  veto,  but  never  denied  or  questioned  the  contention 
of  Mr.  Davis. 

The  veto  was  sustained  February  20,  the  vote  being  30 
to  18  in  favor  of  the  bill,  and  so  not  the  necessary  two 
thirds  to  override  the  veto.-'^ 

Messrs.  Doolittle,  Cowan,  Dixon,  Morgan,  and  Stewart 
were  among  the  Republicans  voting  with  the  Democrats, 
but  some  of  those  who  were  able,  at  that  time,  to  be  con- 
trolled by  reason  were  soon  won  over  by  the  Radicals. 
While  the  bill  failed  to  become  law,  it  was  practically  re- 
enacted  July  16,  1866,  over  the  veto  of  the  President.  His 
second  veto  was  so  strong,  however,  that  party  discipline 
and  prejudice  were  necessary  to  keep  it  from  being  sus- 
tained, as  it  could  not  have  been  sustained  on  its  merits.^^ 

So  bitter  was  the  fight  against  the  President  at  the  time 
both  Houses  passed  the  bill  over  the  veto  on  the  same 
day  that  it  was  received,  without  debate  in  the  House  and 
with  two  speeches  in  the  Senate,  even  before  the  message 
was  printed.^^ 

//The  Civil  Rights  Bill  was  undoubtedly  the  most  impor- 
tant bill  passed  during  the  first  session  of  the  39th  Con- 
gress. It  was  a  companion  measure  to  the  Freedmen's 
Bureau  Bill,  both  being  introduced  at  the  same  time  by 
Senator  Trumbull.  Both  bills  were  also  referred  to  the 
same  committee  and  reported  back  at  the  same  time.  Pre- 
cedence was  given,  however,  to  the  Freedmen's  Bureau 
Bill,  but  after  its  failure  to  become  law,  the  Civil  Rights 
Bill  was  taken  up  and  debated  at  great  length — the  minor- 
ity using  every  means  possible  to  prevent  its  passage.' 

The  Radicals  were  very  much  chagrined  by  the  successful 
veto  of  the  Freedmen's  Bureau  Bill,  and  every  effort  was 

"  Globe,  39th  Cong.,  ist  Sess.,  p.  936. 

*•  Ibid.,  p.  943. 

^  Burgess,  Reconstruction  and  the  Constitution,  p.  89. 

^Blaine,  in  his  "Twenty  Years  of  Congress,"  volume  II,  p.  171, 
says :  "  It  required  potent  persuasion,  reinforced  by  the  severest 
party  discipline,  to  prevent  a  serious  break  in  both  Houses  against 
the  bill." 


20  Adoption   of   the  Fourteenth  Amendment. 

made  to  bring  the  recalcitrant  into  line.     The  party  whip 
was  brought  to  bear  with  telling  effect,  as  it  was  deter- 
mined that  the  Civil  Rights  Bill  should  become  law.     The 
first  section  of  the  Civil  Rights  Bill  was  almost  identical 
with  section  14  of  the  Freedmen's  Bureau  Bill  as  finally 
adopted,  and  pt  is  to  Jhefirst^  section  of  the  Civil  Rights^ 
Bill  that  we  especially  wish  to  direcFattention,  since  it  was 
I  to  secure  the  provisions  of  this  section  that  the  first  section 
j  of  the  Fourteenth  Amendment  was  incorporated  into  our 
I  Constitution.     The  first  section  was  in  fact  the  basis  of  the 
I  ^hole  bill,  the  other  sections  merely  providing  the  machin- 
J   erv  for  its  enforcement.!    — - 

Section  one  as  originally  introduced  declared  that  there 
shall  be  "  no  discrimination  in  civil  rights  or  immunities 
among  the  inhabitants  of  any  State  or  Territory  of  the 
United  States  on  account  of  race,  color,  or  previous  condi- 
tion of  slavery ;  but  the  inhabitants  of  every  race  and  color, 
without  regard  to  any  previous  condition  of  slavery^  or 
involuntary  servitude,  except  as  a  punishment  for  crime 
whereof  the  party  shall  have  been  duly  convicted,  shall  have 
the  same  right  to  make  and  enforce  contracts,  to  sue,  be 
parties,  and  give  evidence,  to  inherit,  purchase,  lease,  sell, 
hold,  and  convey  real  and  personal  property,  and  to  full 
and  ec[ual  _benefits  of  all  laws  and  proceedings  for  the 
security  of  persons  and  property,  and  shall  be  subject  to 
like  punishments,  pains,  and  penalties,  and  to  none  other, 
any  law,  statute,  ordinance,  regulation,  or  custom,  to  the 
contrary  notwithstanding."  It  was  subsequently  added  that 
all  persons  born  in  the  United  States,  and  not  subject  to 
any  foreign  power,  Indians  not  taxed  being  excluded,  were 
dtizens  of  the  United_States.2^  The  purpose  of  this  clause 
was  to  make  a  declaration  that  negroes  were  citizens  of  the 
United  States,  and  so  avoid  the  consequences  of  the  Dred 
Scott  decision.  This  is  the  only  notable  difference  between 
the  provisions  of  this  section  of  the  Civil  Rights  Bill  and 
those  of  the  Freedmen's  Bureau  Bill. 

Mr^JJVumbull,  chairman  of  the  Senate  Judiciary  Com- 

*  Globe,  39th  Cong.,  ist  Sess.,  pp.  211  and  474. 


Freedmen's  Bureau  and   Civil  Rights  Bills.         21 

mittee,  and  the  putative  f ather_gf_the  Civil  Rights  Bill, 
said  that  the  purpose  of  the  bill  was  to  destroy  the  discrim- 
ination made  ag^ainst  the  negro  in  the  laws  of  the  Southern 
States  and  to  carry  into  effect  the  Thirteenth  Amendment. 
TKe  second  section  of  the  Amendment  gave  Congress  the 
power  to  pass  any  bill  that  it  deemed  appropriate  to  secure 
the  freedom  conferred  by  the  first  section.  He  cited  the 
kws  of  South  Carolina  and  Mississippi  to  show  that  the 
negroes  were  discriminated  against,  and  said  that  nearly 
all  the  state  legislatures  of  the  Southern  States  which  had 
met  since  the  adoption  of  the  Amendment  abolishing  slav- 
ery, had  practically  reenacted  the  slave  codes.  The  right 
to  have  fire-arms,  to  go  frorn  place  to  place,  to  teach,  to 
preach,  and  to  own  property,  he  regarded  as  the  rights  of 
a  freedmaiTT,  aftdlhat  the  laws  denying  these  rights  to  the 
negroes  might  properly  be  declared  void.  He  was  candid 
enough,  however,  to  state,  without  being  questioned,  that 
the  bill  might  be  assailed~on  the  ground  that  it  gave  to  the 
FederaPGovernment  powers  which  properly  belonged  to 
the  States,  though  he  did  not  think  it  open  to  that  objec- 
tion, since  it  would  have  no  operation  in  any  State  where 
the  laws  were  equal. 

In  answer  to  the  i:juerv  of  what  was  meant  by  the  term 
"  QJvil  rights,"  he  replied  that  the  first  section  of  the  bill 
defined  it,  and  that  it  did  not  undertake  to  confer  any  polit- 
ical rights.^*  I  lt^seems_evident.  however,  that  the  term  \^ 
"civil  rights  ■  was  meant  to  include  more  than  the  specific 
rights  enumerated  in  the  first  section  of  the  bill,  for^r. 
Trumbull  had,  a  few  minutes  before,  declared  that  the  right 
to  travel,  to  teaclCto'  preach,  etc.,  were  ri,Q-hts  which  belonged 
to  all,  "and  tha,t  the  bill  was  to  secure  tnem  to  all.  y  / 

It  must  aVso   be    remembered   that    Mr.   Trumbull    had '' 
framed  the  jFreedmen's  Bureau  Bill  which  had  been  passed 
by  the  Senafe  four  days  before,  the  seventh  section  of  which 
was  almost  identical  with  the  first  section  of  this  bill.     That 
bill  made  the  same  enumeration  of  rights,  but  they  were 

''Ibid.,  pp.  474-76. 


22  Adoption   of  the  Fourteenth  Amendment. 

declared  to  be  only  a  part  of  the  civil  rights  and  immunities 
of  citizens. 

Mr.  Sattlsbury^,  of  Dela, ware,  took  a  decided  stand  against 
the  whole  measure,  declaring  that  it  was  not  only  unconsti- 
tutional, but  that  it  was  subversive  of  the  true  theory  of 
our  Federal  system.  His  position  was  that  the  theory  of 
those  who  advocated  the  bill  would  make  the  people  sub- 
ject to  the  absolute  control  of  Congress,  and  that  this  was 
contrary  to  the  intentions  of  the  Fathers.  He  did  not  deny 
that  those  who  voted  for  the  Thirteenth  Amendment  might 
have  intended  to  confer  the  power  on  Congress  to  pass  such 
a  bill  as  the  one  under  consideration,  but  that  such  inten- 
tion was  not  avowed  at  the  time.  In  his  opinion  suffrage 
was  a  civil  right  and  would,  therefore,  be  conferred  on 
negroes  by  the  bill.  The  terms  of  the  bill  would  be  con- 
strued, he  said,  according  to  their  legitimate  meaning  and 
import,  and  not  according  to  what  Mr.  Trumbull  intended. 
This  bill,  if  enacted  into  law,  would,  he  asserted,  deprive 
the  States  of  their  police  power,  and  would  nullify  the  laws 
of  his  State  which  forbade  negroes  to  keep  fire-arms  or 
ammunition.^^  This  last  statement  was  not  questioned  by 
any  one,  and  since  Mr.  Trumbull  also  seemed  to  recognize 
that  the  right  to  keep  arms  was  a  right  to  which  all  were 
entitled,  we  may  conclude  that  this  right  was  intended  to 
be  conferred  upon  negroes  if  the  States  permitted  white 
men  to  enjoy  it.  The  right  to  keep  and  bear  arms  is  recog- 
nized in  the  national  Constitution,  but  only  to  the  extent 
of  saying  that  the  Federal  Government  could  not  deny  the 
right,  and  not  at  all  limiting  the  power  of  the  States  to 
determine  who  might  exercise  that  right.  As  a  further 
evidence  that  Mr.  Saulsbury  was  correct  in  his  opinion,  we 
have  already  seen  that  the  right  to  bear  arms  was  specific- 
ally recognized  as  one  of  the  civil  rights  in  the  Freedmen's 
Bureau  Bill. 

Mr.  Van  Winkle,  of  West  Virginia,  and  Mr.  Cowan,  of 
Pennsylvania,  both  Republicans,  thought  the  bill  unconsti- 
tutional.    Mr.  Cowan  went  so  far  as  to  say  that  if  the  Con- 

''Ibid.,  pp.  476-78.  """^  ~ 


Freedmen's  Bureau  and  Civil  Rights  Bills.        23 

stitution  authorized  the  bill,  then  Congress  had  the  power 
to  overturn  the  States  themselves.y'  If  the  Jjill  became  Igiw 
the  statutes  o^^Pennsylvania  in  regard  tQJnherit^afies  would, 
he  declared,  be  repealeSTalld  the  law  providing  for  separate 
schools  would  be  nullified,  thus  making  tji^e  scUoftLiiirectors, 
should  they  execute  the  state  law,  criminals.  In  his  opin- 
ion, the  Amendment  abolishing  slavery  was  not  intended  to 
revolutionize  the  laws  of  the  States,  nor  was  it  pretended 
that  it  did  more  than  sever  the  bonds  that  bound  the  slave 
to  his  former  master,  and  that  no  wider  operation  could  be 
given  it  than  to  sever  the  relation  between  the  master  and 
his  slave.2«  Ije-alsQ  thousbt..lkat-  tlia-^bilLv^ffig-Uld  jj  11 11  if30 
^ate  laws  in  reg3rd^tji.jaiisx;i^ggjiatiQo..!I 

Mr,  Howard,  of  Michigan,  a  member  of  the  Reconstruc- 
tion Committee,  spoke  in  defense  of  the  bill,  and  in  reply 
to  Mr.  Cowan  said  that  he  was  a  member  of  the  Judiciary 
Committee  at  the  time  the  Thirteenth  Amendment  was 
drafted  and  reported  to  the  Senate;  that  he  remembered 
very  distinctly  the  views  entertained  by  the  members  of  that 
committee  in  regard  to  the  Amendment ;  and  that  it  was  the 
intention  of  its  friends  and  advocates  to  give  Congress  the 
precise  power  over  slavery  and  freedmen  which  was  pro- 
posed to  be  exercised  by  the  bill  then  under  consideration. 
He  said  that  they  easily  foresaw  what  efforts  would  be 
made  by  the  South  to  deprive  the  freedmen  of  their  rights 
and  privileges,  and  that  it  was  the  purpose  of  the  Amend- 
ment to  give  Congress  the  power  to  forestall  or  annul  those 
efforts.^^ 

Mr.  Reverdy  Johnson,  of  Maryland,  who  was  probably 
the  best  constitutional  lawyer  in  the  39th  Congress,  believed 
that  the  bill  was  unconstitutional.  He  even  thought  that 
it  would  nullify  state  laws  against  miscegenation,  though 
he  did  not  think  the  framers  of  it  intended  to  do  this.^^  If 
he,  a  good  lawyer  and  a  conservative  man,  thought  the 
terms  of  the  bill  could  be  so  construed  as  to  do  this,  it  is 


*  Ibid.,  pp.  499-500. 

^  Ibid.,  p.  604. 

"Ibid.,  p.   503. 

"Ibid.,  p.  505. 


24  Adoption   of  the  Fourteenth  Amendment. 

perfectly  evident  that  the  courts  might  fall  into  the  same 
error,  if  indeed  it  would  be  an  error.  He  suggested  that 
the  bill  should  be  made  so  plain  as  to  obviate  this  difficulty, 
but  his  suggestion  was  not  followed. 

Some  of  the  Senators  from  California,  Oregon,  Minne- 
sota and  other  Western  States,  wanted  the  first  clause  so 
amended  as  not  to  make  Indians  citizens,  saying  that  the 
state  laws  which  made  it  an  indictable  offense  for  a  white 
man  to  sell  arms  or  ammunition  or  intoxicating  liquors  to 
Indians,  would  be  nullified,  since  it  could  properly  be  held 
that  the  Indians,  if  declared  to  be  citizens,  would  have  the 
same  right  to  buy,  sell,  and  use  that  kind  of  property  as 
any  other  citizen.  Mr.  Henderson,  of  Missouri,  replying 
to  these  objections,  said  that  it  would  not  necessarily  follow 
that  such  laws  would  be  abrogated,  since  the  States  would 
still  have  the  power  to  declare  who  were  competent  to  make 
contracts,  etc.,  just  as  they  did  in  regard  to  minors.*"  He 
seems  to  have  been  in  error  here,  for  in  the  same  section 
of  the  bill  it  was  stated  that  the  right  to  make  contracts, 
to  buy,  to  sell,  etc.,  could  not  be  denied  on  account  of  race 
or  color.  It  would  thus  be  impossible  for  the  States  to  say 
that  Indians  could  not  keep  fire-arms  or  make  contracts, 
since  the  law  must  apply  equally  to  all  races.  There  might 
be  educational  or  age  requirements,  but  such  requirements 
would  have  to  apply  to  all. 

Mr.  Davis,  of  Kentucky,  seemed  to  think  that,  if  the  bill 
became  law,  suffrage  would  be  conferred  on  the  negroes, 
that  miscegenation  could  not  be  prohibited  by  state  law, 
and  that  a  despotic  central  government  would  be  created. 
He  characterized  the  bill  as  "  outrageous,"  "  unconstitu- 
tional," "  iniquitous,"  "  most  monstrous,"  '  and  "  abomin- 
able."*^ Mr.  Trumbull  again  reiterated  the  statement  that 
the  bill  was  applicable  exclusively  to  civil  rights  and  that  it 
did  not  propose  to  regulate  political  rights  or  to  confer 
suffrage.*^ 

"  Ibid.,  pp.  572-74- 
Ibid.,  pp.  595-99. 
"Ibid.,  p.  599. 


Freedmen's  Bureau  and  Civil  Rights  Bills.        25 

Mr.  Guthrie,  of  Kentucky,  a  very  fair-minded  man,  said 
that  Congress  was  legislating  before  the  States  had  acted, 
before  they  had  had  time  to  legislate,  and  that  the  bill  under 
consideration  attempted  to  repeal  state  laws  and  to  enact 
new  laws  for  them,  the  enforcement  of  which  was  put  in 
new  hands.  He  denied  that  the  people  had  intended  by  the 
Thirteenth  Amendment  to  turn  over  the  state  governments 
and  subject  them  to  the  dominion  of  Congress.^^  Mr. 
McDougall,  of  California,  opposed  the  bill  on  the  ground 
both  of  constitutional  law  and  of  sound  policy.  He  ap- 
proved what  was  said  by  Senators  Guthrie,  Hendricks,  and 
Cowan.^* 

Mr.  Saulsbury,  just  before  the  final  vote  was  taken, 
offered  an  amendment  inserting  the  words  "  except  the 
right  to  vote  in  the  States  "  after  the  words  "  civil  rights." 
He  contended  that  suffrage  was  a  civil  right,  and  since  Mr. 
Trumbull  had  said  that  it  was  not  the  purpose  or  intention 
of  the  bill  to  confer  suffrage,  he  wanted  it  so  stated  specific- 
ally. The  amendment  was  rejected,  however,  by  a  vote  of 
39  to  7^^ — three  Democrats  voting  against  it,  evidently 
thinking  that  suffrage  was  not  conferred  by  it. 

The  bill  was  then  passed  by  the  Senate,  February  2,  1866, 
by  a  vote  of  33  to  12,  five  being  absent.^*  Among  the  nega- 
tive votes  were  those  of  three  Republicans,  Cowan,  Van 
Winkle  and  Norton. 

-^/Mr.  Wilson,  of  Iowa,  chairman  of  the  Judiciary  Commit- 
tee, had  charge  of  the  bill  in  the  House  and  opened  the 
^bate  on  it  March  i.  It  was  not  the  object  of  the  bill,  he 
said,  to  establish  new  rights,  but  to  protect  and  enforce 
those  which  already  belonged  to  every  citizen.  It  did  not 
mean  that  all  citizens  should  have  the  right  to  sit  on  juries, 
or  that  their  children  should  attend  the  same  schools,  for 
these  were  not  civil  rights  or  immunities'.  He  regarded 
civil  rights  as  synonymous  with  natural  rights/  As  to  the 
clause  declaring  who  should  be  citizens  of  the  United  States, 

^  Ibid.,  pp.  600-01. . 
^Ibid.,  p.  604. 
*  Ibid.,  p.  606. 
"^Ibid.,  p.  607. 


V 


26  Adoption    of  the  Fourteenth  Amendment. 

he  said  that  this  was  but  declaratory  of  what  was  already 
the  law,  holding  that  all  free  persons  born  in  the  United 
States  were  citizens  thereof.  The  opinion  of  Marshall  in 
the  celebrated  case  of  McCulloh  vs.  Maryland  was  cited 
to  show  that  Congress  was  the  sole  judge  as  to  the  neces- 
sity of  the  measure,  and  it  was  declared  that  there  could 
be  no  appeal  from  the  decision  of  Congress  except  to  an- 
other Congress.^^ 

Mr.  Cook,  of  Illinois,  also  took  the  position  that  Congress 
was  the  judge  as  to  the  necessity  and  appropriateness  of 
legislation  to  secure  the  rights  of  freedmen  to  those  who 
had  been  freed.^* 

Mr.  Rogers,  of  New  Jersey,  one  of  the  leaders  of  the 
minority,  vigorously  opposed  the  whole  measure.  He  de- 
clared that  the  Amendment  proposed  by  Mr.  Bingham,  and 
which  had  just  been  discussed  in  the  House,  was  offered  to 
authorize  such  a  bill  as  this  one.  Mr.  Bingham  had  offered 
that  Amendment  with  the  approval  of  the  majority  of  the 
Reconstruction  Committee,  and  it  might  properly  be  in- 
ferred that  those  who  approved  that  Amendment  at  least 
thought  it  doubtful  whether  Congress  possessed  the  power 
to  pass  such  a  bill  as  the  one  then  under  consideration. 

If  Congress  had  the  power  to  interfere  with  the  state 
laws,  regulating  schools  and  marriage,  it  equally  had  the 
power,  contended  Mr.  Rogers,  to  confer  the  elective  fran- 
chise. Jn  fact,  he  regarded  suffrage  as  a  civil  right  and  as 
such  would  be  conferred  by  the  bill.  Reference  was  also 
made  to  Secretary  Seward's  reply  to  the  objections  raised 
against  the  second  clause  of  the  Thirteenth  Amendment.^* 
Governor  Perry,  of  South  Carolina,  had  wired  the  Presi- 
dent that  the  only  objection  the  Legislature  had  to  the 
Amendment  abolishing  slavery  was  tHe~  second  section, 
which  it  feared  might  be  construed  to  give  Congress  power 
of  local  legislation  over  both  negroes  and  white  men.  To 
this  telegram  Secretary  Seward  replied  that  the  objection 

"Ibid.,  pp.  1 1 15-18. 
''Ibid.,  p.  1 124. 
"Ibid.,  pp.  1120-23. 


Freedmen's  Bureau  and   Civil  Rights  Bills.        27 

to  the  second  section  was  regarded  as  "  querulous  and  un- 
reasonable," since  it  really  restrained,  rather  than  enlarged, 
the  powers  of  Congress,  These  telegrams  were  sent  to 
the  Legislature  by  Governor  Perry  to  be  placed  on  "  record 
aTthe  oonstruction  which  had  been  given  to  the  Amendment 
by  the  executive  department  of  the  Federal  Government." 
The  Legislature,  in  ratifying  the  Amendment,  stated  that 
i|' was  understood  that  Congress  could  not  legislate  as  to 
the  political  status  or  civil  relations  of  the  negroes. 

Alabama  and  Florida  added  almost  identical  declaratory 
resolutions,  to  the  eflfect  that  the  Amendment  was  not  to 
confer  power  upon  Congress  to  legislate  upon  the  political 
status  of  the  freedmen  in  those  States.*" 

Mr.  Thayer,  of  Pennsylvania,  declared  that  the  bill  could 
nof15e'  construed  to  confer  suffrage,  suffrage  being  a  polit- 
ical, and  not  a  civil,  right,  and  that  the  enumeration  of  the 
fights  to  be  secured  precluded  the  possibility  of  extending 
the  meaning  of  the  general  words  beyond  the  particulars 
enumerated.  If  his  position  on  this  point  is  correct,  then"" 
the  meaning  of  the  general  terms  used  in  the  first  section 
of  the  Fourteenth  Amendment  could  be  extended,  since 

^re  is  no  enumeration  of.  particulars  in  it-'  The  first 
clause  of  the  Civil  Rights  Bill  only  reiterated  what  was 
already  law,  he  contended,  and  that  if  this  was  not  the  case, 
that  Congress  had  the  power,  under  the  naturalization 
clause  of  the  Constitution,  to  declare  who  were  citizens. 
He  also  stated  explicitly  that  he  intended,  when*  he  voted 
for  the  second  section  of  the  Thirteenth  Amendment,  to 
give  Congress  the  power  to  legislate  for  the  purpose  of 
securing  the  rights  which  the  first  section  gave  to  the  freed- 
men; in  other  words,  to  authorize  such  measures  as  the 
Civil  Rights  Bill.  He  did  not  think  the  Amendment  pro- 
posed by  Mr.  Bingham  necessary,  though  he  would  sup- 
port it  in  order  to  make  things  doubly  secure.*^ 

To  show  that  there  was  a  feeling  among  others  than 
opponents  of  the  bill  that  it  might  be  construed  to  confer 

**  McPherson,   Reconstruction,   pp.   21-25. 
*^  Globe,  39th  Cong.,  ist  Sess.,  pp.  1151-53. 


28  Adoption    of   the  Fourteenth  Amendment. 

suffrage,  Mr.  Hill,  of  Indiana,  a  Republican  and  a  sup- 
porter of  the  measure,  proposed  that  the  words  "  except 
the  right  of  suffrage "  be  inserted.  This  amendment  he 
considered  a  fair  and  explicit  statement  of  what  the  advo- 
cates of  the  bill  had  repeatedly  declared  in  debate.  He  also 
thought  it  necessary  in  order  to  relieve  the  bill  from  am- 
biguity upon  that  point.*^ 

Mr.  Eldridge,  of  Wisconsin,  said  that  the  bill  not  only 
proposed  to  regulate  the  police  and  municipal  affairs  of  the 
States,  but  that  it  attempted  to  prostrate  the  judiciary  of 
the  States,  and  that  it  was  designed  to  accumulate  and 
centralize  power  in  the  Federal  Government.  He  also 
cited  the  fact  that  Mr.  Bingham  had  introduced  a  resolu- 
tion proposing  a  constitutional  amendment  for  the  purpose 
of  meeting  the  constitutional  objections  to  the  passage  of 
the  bill.*^  He  very  tersely  presented  the  objections  enter- 
tained by  the  minority  to  such  legislation. 

Mr.  Thornton,  of  Illinois,  a  conservative  Democrat,  held 
that  it  was  not  necessary  for  a  man  to  possess  and  enjoy 
all  the  civil  rights  and  immunities  in  order  to  be  free,  and 
that  the  Amendment  abolishing  slavery  only  authorized 
such  legislation  as  was  necessary  to  4nake  men  free.  He 
thought  the  former  slaves  should  have  the  right  to  testify 
and  to  contract,  but  to  undertake  to  legislate  beyond  that 
would  trench  upon  the  rights  of  the  States.  He  main- 
tained that  the  construction  put  upon  the  Amendment  by 
the  advocates  of  the  bill  would  make  the  power  conferred 
upon  Congress  by  it  indefinite  and  unlimited  except  by  the 
caprices  of  those  who  might  assume  to  exercise  it.  If  Con- 
gress should  determine,  he  continued,  that  the  elective  fran- 
chise was  necessary  to  freedom,  then  it  could  enact  a  law 
conferring  it.  This  contention  seems  perfectly  proper,  for 
if  the  premise  of  the  proposition  of  those  advocating  the 
bill  is  accepted,  it  logically  follows  that  Congress  might 
declare  that  any  or  all  of  the  political  rights  were  either 
necessary  or  appropriate  to  secure  freedom  to  the  former 

**Ibid.,  p.  1 154. 
**Ibid.,  pp.  1154-55. 


Freedmen's  Bureau  and  Civil  Rights  Bills.        29 

slaves.  Mr.  Thornton  did  not  think  the  term  "  civil  rights  " 
included  the  right  of  suffrage,  but  that  with  the  loose  and 
liberal  construction  then  in  use  it  might  be  so  construed, 
and  for  that  reason  he  thought  the  amendment  stating  spe- 
cifically that  suffrage  should  not  be  granted  ought  to  be 
accepted.** 

Mr.  Broomall,  of  Pennsylvania,  regarded  the  right  of 
speech,  of  transit,  of  domicil,  and  of  petition  as  being  some 
of  the  rights  and  immunities  of  citizens.*^  Mr.  Raymond, 
of  New  York,  a  conservative  or  administration  Republican, 
said  that  the  negroes,  if  made  citizens  of  the  United  States, 
would  have  the  right  to  go  from  one  State  to  another,  to 
bear  arms  and  to  testify  in  the  Federal  courts.  He,  how- 
ever, thought  the  bill  unconstitutional,  especially  the  second 
section.*® 

Mr.  Delano,  of  Ohio,  a  Republican,  thought  that  the 
clause  "  the  full  and  equal  benefit  of  all  laws  and  proceed- 
ings for  the  security  of  persons  and  property,  as  is  enjoyed 
by  white  citizens "  conferred  the  right  of  being  jurors, 
though  Mr.  Wilson  did  not  think  so.  Mr.  Delano  stated 
that  he  was  in  favor  of  the  main  purposes  of  the  bill,  but 
he  did  not  think  it  advisable  to  confer  upon  the  negroes  at 
that  time  the  right  of  being  jurors.  Furthermore,  he 
thought  it  doubtful  whether  Congress  had  the  power  to 
pass  the  bill,  since  neither  the  right  to  testify  nor  to  inherit 
was  necessary  to  freedom,  as  was  illustrated  by  the  various 
state  laws  declaring  that  certain  persons  could  not  testify 
or  inherit.  In  some  States  aliens  could  not  inherit  and 
infidels  could  not  testify.  It  was  also  pointed  out  that  the 
former  law  of  Ohio  which  did  not  permit  negroes  to  par- 
ticipate in  the  public  schools  or  in  the  funds  would  have 
been  void  under  this  bill.*'^  If  the  phrase  "  full  and  equal 
benefit  of  all  laws  and  proceedings  "  was  not  an  extension 
of  the  privileges  enumerated,  then  it  was  meaningless 
and  should  not  have  been  put  in.     While  opposing  the  bill 

"Ibid.,  pp.  1156-57. 

""Ibid.,  p.   1263. 

*'Ibid.,  pp.   1266-67. 

"Ibid.,  Appendix,  pp.   156-58. 


30  Adoption   of   the  Fourteenth  Amendment. 

as  being  of  doubtful  constitutionality,  as  tending  towards 
centralization  and  consolidation,  Mr.  Delano  nevertheless 
voted  for  it.*^  Mr.  Davis,  of  New  York,  was  another  who 
said  that  the  bill  was  not  in  consonance  with  the  Constitu- 
tion, but  was  in  derogation  of  the  rights  of  the  States,  and 
yet  voted  for  it.'*® 

Mr.  Kerr,  of  Indiana,  seemed  to  think  that  the  bill  would 
permit  negroes  to  engage  in  certain  kinds  of  business,  such 
as  retailing  spirituous  liquors,  which  was  denied  them,  to 
attend  the  same  schools  with  white  children,  and  to  rent 
and  occupy  the  most  prominent  pews  in  churches.  These 
rights  as  well  as  the  right  to  testify  were  not  necessary 
incidents  of  freedmen,  nor  did  the  denial  of  them  render 
any  one  a  slave.  If  Congress  had  the  power  to  confer 
these  privileges  it  could  equally  be  claimed  that  it  had  the 
power  to  grant  the  suffrage.^"  The  laws  of  Indiana  at  that 
time  did  not  allow  negroes  to  sell  spirituous  liquors  or  to 
attend  the  common  schools. 

One  of  the  most  significant  speeches  made  on  the  bill 
was  the  one  delivered  by  Mr.  Bingham,  one  of  the  ablest 
members  of  Congress.  He  was  also  one  of  the  Radical 
leaders  and  a  member  of  the  Reconstruction  Committee, 
but  his  objections  to  the  bill  were  of  such  a  character  that 
he  could  not  support  it.  Like  Delano,  Raymond,  and  other 
Republicans,  his  objections  were  based  on  constitutional 
grounds,  but  unlike  Delano  and  some  others  he  was  unwill- 
ing to  give  his  vote  to  a  measure  that  he  thought  was  uncon- 
stitutional. 

Again,  his  position  was  entirely  different  from  that  of 
Cowan,  Norton,  and  Van  Winkle  in  the  Senate,  and  of 

" "  In  my  opinion,  if  we  adopt  the  principle  of  this  bill,  we  de- 
clare in  effect  that  Congress  has  authority  to  go  into  the  States 
and  manage  and  legislate  with  regard  to  all  the  personal  rights 
of  the  citizen — rights  of  life,  liberty,  and  property.  You  render 
this  Government  no  longer  a  Government  of  limited  powers;  you 
concentrate  and  consolidate  here  an  extent  of  authority  that  will 
swallow  up  all  or  nearly  all  of  the  rights  of  the  States  with  re- 
spect to  the  property,  the  liberties,  and  the  lives  of  its  citizens." 
Ibid.,  Appendix,  p.  158. 

"  Ibid.,  p.  1265. 

"•  Ibid.,  p.  1268. 


Freedmen's  Bureau  and  Civil  Rights  Bills.        31 

Raymond,  Latham,  and  others  in  the  House,  since  he  was 
not  a  Johnson  Republican,  but  one  of  the  extreme  Radicals. 
He  did  not,  however,  like  many  Radicals,  permit  his  par- 
tisanship to  control  his  judgment  and  action  when  it  came 
to  a  question  of  constitutional  power.  He  was  earnestly 
desirous  of  accomplishing  the  objects  aimed  at  by  the  bill, 
but  thought  that  it  transcended  the  Federal  jurisdiction, 
since  the  questions  about  which  it  undertook  to  legislate 
■v^ere  left  by  the  Constitution  entirely  with  the  States.  The 
great  need  of  the  Republic  was  the  enforcement  of  the 
Bill  of  Rights  (the  first  eight  Amendments),  but  this  could 
not  be  done  by  the  Federal  Government,  he  declared,  since 
those  Amendments  had  been  uniformly  held  to  be  limita- 
tions upon  the  United  States.  The  power  to  punish  of- 
fenses against  life,  liberty,  or  property  was  one  of  the  re- 
served powers  of  the  States. 

Mr.  Bingham  also  took  the  position  that  the  term  "  civil 
rights  "  was  very  comprehensive  and  that  it  embraced  every 
right  that  pertained  to  a  citizen  as  such,  including  political 
rights.  Mr.  Trumbull  had  admitted  to  him  that  the  fran- 
chise of  office  was  a  civil  right  according  to  all  the  authori- 
ties. He  thought  the  evils,  which  the  bill  sought  to  remedy 
should  be  remedied  by  a  constitutional  amendment  expressly 
prohibiting  the  States  from  such  an  abuse  of  power,  and 
not  by  an  arbitrary  assumption  of  power  by  Congress. 

The  Amendment  which  he  had  advocated  would  give 
Congress  the  power,  he  said,  to  punish  all  violations  of  the 
Bill  of  Rights  by  state  officers."^  He  spoke  only  thirty  min- 
utes, but  within  that  short  time  made  one  of  the  strongest 
speeches  against  the  bill — a  speech  full  of  sound  reasoning 
and  good  legal  arguments,  but  his  auditors  were  in  no  mood 
to  be  governed  by  reason,  however  strongly  presented  or  no 
matter  what  its  source. 

His  position  on  this  very  important  bill,  as  well  as  the 
arguments  used  by  him,  should  be  kept  in  mind  on  account 
of  the  aid  to  be  derived  from  them  in  interpreting  the  first 
section  of  the  Fourteenth  Amendment,  since  he  was  the 

■"  Ibid.,  pp.  1291-92. 


32  Adoption   of  the  Fourteenth  Amendment. 

author  of  that  section.     At  a  first  glance  one  would  be 

inclined  to  think  that  he  was  inconsistent  in  voting  for  the 

Freedmen's  Bureau  Bill  and  then  opposing  the  Civil  Rights 

Bill,  since  they  were  so  similar,  but  there  was  this  marked 

difference  which  accounts  for  his  votes  on  both  measures. 

The  former  bill  was  to  apply  only  to  the  insurrectionary 

States  and  was  to  cease  upon  the  restoration  of  those  States 

to  their  constitutional  relations  with  the  Union,  while  the 

latter  was  to  apply  to  all  the  States  and  was  intended  to 

be  permanent. 

i      Mr.  Shellabarger,  of  Ohio,  was  among  the  Republicans 

J'  who  had  doubts  as  to  the  constitutionality  of  the  bill,  though 

I  he  said  he  had  resolved  his  doubts  in  favor  of  the  security 

\and  protection  of  the  American  citizen  and  would  vote  for 

^e  bill.^2 . ^_____ 

Even  Mr.  Wilson,  who  had  charge  of  the  bill  in  the 
House,  admitted  in  his  opening  speech  that  precedents,  both 
judicial  and  legislative,  were  found  in  sharp  conflict  with 
.  its  provisions.  In  his  closing  speech,  he  replied  to  the 
objections  raised  by  Mr.  Bingham,  maintaining  that  state 
laws  in  regard  to  schools,  juries  and  suffrage  would  not 
be  set  aside  by  the  bill  if  properly  construed,  since  it  only 
embraced  those  rights  which  belonged  to  citizens  of  the 
United  States  as  such  and  did  not  attempt  to  regulate  those 
rights  which  rightfully  depended  upon  state  laws  and  regu- 
lations. He  denied  the  contention  of  Mr.  Bingham  that  an 
amendment  to  the  Constitution  was  necessary  to  enforce 
the  Bill  of  Rights,  since  the  possession  of  the  rights  by  citi- 
zens necessarily  conferred  by  implication  the  power  upon 
Congress  to  provide  by  appropriate  legislation  for  their 
protection. 

If  a  State  undertook  to  deprive  any  citizen  of  life,  liberty, 
or  property  without  due  process  of  law,  Congress  had  the 
power  to  provide  a  remedy  for  his  protection.^^    His  posi- 

"  Ibid.,  p.  1273. 

""I  find  in  the  Bill  of  Rights  which  the  gentleman  (Mr.  Bing- 
ham) desires  to  have  enforced  by  an  amendment  to  the  constitu- 
tion that  'no  person  shall  be  deprived  of  life,  liberty  or  property 
without  due  process  of   law.'    I   understand   that  these   constitute 


Freedmen's  Bureau  and   Civil  Rights  Bills.         33 

tion  was  directly  opposed  to  the  ruling  of  the  Supreme  Court 
of  the  United  States,  since  it  had  been  repeatedly  held  that  the 
Bill  of  Rights  or  the  first  eight  Amendments  were  limitations 
upon  the  Federal  Government  and  by  no  means  limited  the 
powers  of  the  States.  Property  had  been  taken  by  the  States 
without  due  process  of  law,  and  there  was  no  remedy  said  \^. 
the  Court  in  the  case  of  Barron  vs.  Baltimore,  His  posi- 
tion was  thus  untenable,  and  since  he  stated  that  the  pur- 
pose of  the  bill  was  to  secure  the  rights  enumerated  in  the 
Bill  of  Rights,  it  becomes  clearly  evident  that,  according 
to  the  previous  rulings  of  the  Supreme  Court,  the  bill  was 
unconstitutional.  His  speech  furthermore  strengthens  the 
presumption  that  Mr.  Bingham  was  striving  to  make  the 
rights  and  privileges  of  the  early  Amendments  applicable  to 
the  States  as  well  as  to  the  Federal  Government.  Mr.  Wil- 
son may  have  given  the  opinion  of  the  Judiciary  Committee 
and  of  many  members  of  Congress,  but  his  arguments  fall 
far  short  of  those  produced  by  Mr.  Bingham,  especially 
when  considered  from  the  point  of  view  of  constitutional 
law.  In  fact,  his  arguments,  as  well  as  those  of  many  of 
the  adherents  of  the  bill,  were  based  more  upon  what  ought 
to  be  than  upon  what  could  constitutionally  and  legally 
be,  and  so  were  more  of  the  nature  of  political  theory  and 
philosophy  than  of  constitutional  law. 

Mr.  Latham,  a  Republican  Representative  from  West  Vir- 
ginia, held  that  Congress  could  not  put  its  interpretation  "^ 
upon  the  Constitution,  this  being  a  matter  belonging  to  the 
judiciary,  though  it  could  give  its  interpretation  to  its  own 
acts.  This  seems  perfectly  true,  for  otherwise  the  Eleventh 
Amendment  would  have  been  unnecessary,  and  accepting  this 
statement  it  becomes  apparent  that  Congress  could  not  in- 
terpret the  Thirteenth  Amendment  since  it  would  be  a  ques- 
tion for  the  Courts  to  decide  just  what  rights  were  con- 

the  civil  rights  belonging  to  the  citizens  in  connection  with  those 
which  are  necessary  for  the  protection  and  maintenance  and  per- 
fect enjoyment  of  the  rights  thus  specifically  named,  and  these 
are  the  rights  to  which  this  bill  relates,  having  nothing  to  do  with 
subjects  submitted  to  the  control  of  the  several  States."  Ibid.,  p. 
1294. 

3 


34  Adoption   of  the  Fourteenth  Amendment. 

ferred  by  it.  Congress  had  the  power,  in  fact  it  had  already 
exercised  it,  to  declare  that  all,  regardless  of  color  or  race, 
should  have  an  equal  right  to  testify  in  the  Federal  Courts, 
an  equal  participation  in  all  the  rights  and  privileges  which 
Congress  might  constitutionally  regulate,  but  he  denied  that 
Congress  had  the  right  to  interfere  with  the  internal  policy 
of  the  States  so  as  to  define  and  regulate  the  civil  rights  and 
immunities  of  the  inhabitants  thereof. 

His  objections  were  not  limited  to  the  questions  of  its  con- 
stitutionality alone,  for  he  considered  it  one  of  a  series  of 
measures,  which,  if  adopted,  would  change  the  whole  policy 
as  well  as  the  very  form  of  our  Government  "  by  a  complete 
centralization  of  all  power  in  the  National  Government."'^* 

We  have  seen  that  there  was  apprenhension  among  Re- 
publicans, as  well  as  among  the  Democrats  that  the  term 
"'  civil  rights  "  might  be  construed  to  confer  suffrage,  and 
in  order  to  remove  all  doubt  on  that  score,  Mr.  Wilson,  re- 
iterating that  it  did  not  alter  his  construction  of  the  bill, 
added  a  new  section  by  way  of  amendment  that  the  bill 
should  not  be  so  construed  as  to  affect  the  laws  of  any  State 
concerning  the  right  of  suffrage.  The  amendment  was 
agreed  to  without  division  or  comment.^'^  Mr.  Bingham 
had  also  moved  that  the  Committee  be  instructed  to  strike 
out  "  and  there  shall  be  no  discrimination  in  civil  rights  or 
immunities  among  citizens  of  the  United  States  in  any  State 
or  Territory  of  the  United  States  on  account  of  race,  color, 
or  previous  condition  of  servitude."  This  motion  was  de- 
feated by  a  vote  of  113  to  37.  It  is  rather  singular  that  not 
a  Democrat  voted  to  instruct  the  Committee  to  strike  out 
the  above  clause.  The  bill  was  then  recommitted  without 
instructions  by  a  vote  of  82  to  70.^® 

It  is  worthy  of  notice  that,  although  Mr.  Bingham's 
motion  was  defeated,  the  Committee  nevertheless  reported 
back  the  bill  with  the  identical  changes  that  he  had  pro- 
posed or  suggested.     Mr.  Wilson,  in  reporting  the  bill  with 

**  Ibid.,  pp.  1295-96. 

"Ibid.,  p.    1 162,  also  Blaine's  "Twenty  Years  of   Congress,"  II, 
p.   175. 
"Ibid.,  pp.  1291  and  1296. 


Freedmen's  Bureau  and  Civil  Rights  Bills.         35 

this  amendment,  said  it  did  not  materially  change  the  bill, 
but  that  some  feared  the  deleted  words  might  give  warrant 
for  a  latitudinarian  construction  not  intended.  If  this  were 
true,  why  had  the  proposal  of  Mr.  Bingham  been  objected  to 
so  seriously?  It  is  impossible  to  say  just  why  the  words 
were  struck  out,  though  it  might  be  inferred  that  it  was  done 
in  order  to  secure  the  passage  of  the  bill,  for  there  might 
have  been  considerable  opposition  to  the  clause  which  had 
not  been  expressed.  Thirty-seven  Republicans  had  more- 
over voted  to  that  effect,  and  this  of  itself  must  have  had 
some  weight.  The.  amendment  stating  that  suffrage  was 
not  to  be  regarded  as  a  civil  right  or  immunity  became  un- 
necessary after  those  words  were  struck  out.^'^ 

The  final  vote  on  the  passage  of  the  bill  was  iii  to  38. 
The  following  Republicans  voted  with  the  Democrats  against 
jthe  passage  of  the  bill :  Messrs.  Bingham,  Latham,  Phelps, 
W.  H.  Randall,  Rousseau,  and  Smith.  All  of  these,  ex- 
cept Mr.  Bingham,  were  from  the  border  states  of  Ken- 
tucky, West  Virginia  and  Maryland,  where  there  was  a 
considerable  number  of  negroes.  Mr.  Bingham's  objection 
to  the  bill  was  based  entirely  upon  constitutional  grounds. 
Mr.  Raymond  would  probably  have  voted  against  the  bill 
had  he  been  present. 

To  show  the  view  that  the  minority  had  of  the  bill  to  the 
last,    Mr.   LeBlond   moved,   after  the   bill   had   passed,   to    1 
amend  its  title  by  making  it  read :  "  A  bill  to  abrogate  the    | 
rights  and  break  down  the  judicial  system  of  the  States." 

The  amendments  made  in  the  House  were  concurred  in 
by  the  Senate  without  division  on  March  15. 

On  March  27,  the  President  returned  the  bill  with  his 
^objections  to  the  Senate,  where  it  had, originated^  He  gave 
his  objections  ad  seriatim  to  each  section,  using  many  of  the 
arguments  which  had  been  urged  in  Congress  against  it,  and 
holding  that  it  was  both  unnecessary  and  unconstitutional 
and  that  it  discriminated  between  negroes  and  intelligent 
foreigners.  He  characterized  it  as  a  stride  towards  the  con- 
centration of  all  legislative  power  in  the  National  Govern- 

"  Ibid.,  pp.  1366-67.  / 


36  Adoption   of   the  Fourteenth  Amendment. 

'ment.^^  His  arguments  were  calm,  clear,  and  temperate. 
The  galleries  and  floor  of  the  Senate  Chamber  were  crowded 
when  the  veto  message  of  the  President  was  received,  but 
the  reading  of  it  was  postponed  for  some  time,  for  the  e€tse 
of  Senator  Stockton  was  being  considered.^'  It  is  rather 
significant  that  his  case  was  not  finally  disposed  of  until  it 
was  definitely  known  that  the  ..Civil  Rights  Bill  had  been 
.vetoed, 

"  Ibid.,  p.  1679.  Referring  to  the  rights  secured  by  the  first  sec- 
tion, he  said,  "  a  perfect  equality  of  the  white  and  colored  races 
is  attempted  to  be  fixed  by  Federal  law  in  every  State  of  the 
Union,  over  the  vast  field  of  state  jurisdiction  covered  by  the 
enumerated  rights.  In  no  one  of  these  can  any  State  ever  exer- 
cise any  power  of  discrimination  between  the  different  races.  In 
the  exercise  of  state  policy  over  matters  exclusively  affecting  the 
people  of  each  State,  it  has  frequently  been  thought  expedient 
to  discriminate  between  the  two  races.  By  the  statutes  of  some 
of  the  States,  northern  as  well  as  southern,  it  is  enacted,  for  in- 
stance, that  no  white  person  shall  intermarry  with  a  negro  or 
mulatto."  He  stated  that  he  did  not  believe  that  the  bill  would 
annul  state  laws  in  regard  to  marriage,  but  that  if  Congress  had 
the  power  to  provide  that  there  should  be  no  discrimination  in  the 
matters  enumerated  in  the  bill,  then  it  could  pass  a  law  repealing 
the  laws  of  the  States  in  regard  to  marriage. 

He  then  continued:  "Hitherto  every  subject  embraced  in  the 
enumeration  of  rights  contained  in  this  bill  has  been  considered 
as  exclusively  belonging  to  the  States.  They  all  relate  to  the  in- 
ternal policy  and  economy  of  the  respective  States.  If  it  be 
granted  that  Congress  can  repeal  all  state  laws,  discriminating  be- 
tween whites  and  blacks  in  the  subjects  covered  by  this  bill,  why, 
it  may  be  asked,  may  not  Congress  repeal,  in  the  same  way,  all 
state  laws  discriminating  between  the  two  races  on  the  subjects 
of   suffrage  and  office." 

Speaking  of  the  general  effect  of  the  bill,  he  declared  it  inter- 
fered "  with  the  municipal  legislation  of  the  States,  with  the 
relations  existing  exclusively  between  a  State  and  its  citizens  or 
between  inhabitants  of  the  same  State — an  absorption  and  as- 
sumption of  power  by  the  General  Government  which,  if  ac- 
quiesced in,  must  sap  and  destroy  our  federative  system  of  limited 
powers,  and  break  down  the  barriers  which  preserve  the  rights  of 
the  States.  It  is  another  step,  or  rather  stride,  towards  centrali- 
zation, and  the  concentration  of  all  legislative  powers  in  the  Na- 
tional Government. 

"  The  tendency  of  the  bill  must  be  to  resuscitate  the  spirit  of  re- 
bellion, and  to  arrest  the  progress  of  those  influences  which  are 
more  closely  drawing  around  the  States  the  bonds  of  union  and 
peace."^  He  stated  that  he  was  ready  to  cooperate  with  Con- 
gress in  any  legislation  that  was  necessary  to  secure  the  civil 
rights  to  all  persons  "  under  equal  and  imperative  laws,  in  con- 
formity with  the  provisions  of  the  Federal  Constitution." 

"  Ibid.,  p.  1679,  also  McPherson's  Scrap  Book,  "  The  Civil  Rights 
Bill,"  p.  28. 


Freedmen's  Bureau   and   Civil  Rights  Bills.         37 

Unlike  the  action  on  the  veto  of  the  Freedmen's  Bureau 
Bill,  the  veto  of  this  bill  was  not  taken  up  for  discussion 
until  AprTT  4.  The  cause  of  delay  was  partially  the  death 
of  Senator  Foote,  of  Vermont,  who  died  on  the  morning  of 
the  28th.  The  Senate,  out  of  respect,  adjourned  until  April 
2.  The  veto  message  would,  it  seems,  have  been  the  regular 
order  on  that  day,  but  there  was  no  mention  of  it  either  on 
that  day  or  the  day  following.  While  no  reason  was  given 
for  this  delay,  a  careful  study  of  the  record  reveals  it. 
Time  had  to  be  given  for  Mr.  Foote's  successor  to  be  ap- 
pointed and  to  reach  the  city,  for  every  vote  was  needed.  It 
was  also  desirable  that  Mr.  Stockton's  successor  should  be 
on  hand. 

The  veto  was  the  occasion  of  a  vigorous  debate  in  the 
Senate.  Mr.  Trumbull  made  an  elaborate  speech,  consid- 
ering the  veto  in.  detail  and  maintaining  the  constitution- 
alitj  and  necessity  of  the  bill.  He  was  followed  the  next 
day  by  Reverdy  Johnson  who  made  an  able  speech  in  sup- 
port of  the  veto,  holding  that  if  Congress  could  legislate  for 
the  black,  it  could  for  the  white,  thereby  destroying  the 
reserved  rights  of  the  States.  The  first  section  of  the  bill, 
in  his  opinion,  struck  at  the  legislative  authority  of  the 
States ;  the  second  section  struck  at  their  judicial  depart- 
ments, and  thus  prostrated  the  States  at  the  footstool  of  the 
Federal  power.*'"  Mr.  Wade  made  a  very  defiant  speech  in 
opposition  to  the  veto. 

During  the  debate  an  unusual  incident  showed  the  temper 
which  had  been  engendered  in  the  Senate  by  the  veto  and 
the  debate  on  it.  Late  in  the  evening  of  April  5,  Mr. 
Trumbull  intimated  his  purpose  or  willingness  to  have  the 
vote  taken  if  there  was  no  further  debate.  Mr.  Cowan  sug- 
gested that  an  hour  be  agreed  upon  to  take  the  vote  the 
next  day,  since  two  Senators,  Messrs.  Wright  and  Dixon, 
were  very  sick  and  could  not  with  safety  come  out  at  night. 
Messrs.  Guthrie,  Hendricks  and  others  strongly  insisted 
upon  the  point  of  courtesy.  Mr.  Wade  spoke  very  bitterly 
in  reply,  saying  that  he  was  thankful  that  God  had  stricken 

••Ibid.,  p.  1761. 


38  Adoption   of  the  Fourteenth  Amendment. 

a  member  so  that  he  could  not  be  present  to  sustain  the 
veto.^^  Mr.  McDougall  rebuked  him  with  deserving  sever- 
ity. The  Senate  adjourned,  however,  by  a  vote  of  33  to 
12,  thus  failing  to  sustain  Mr.  Wade's  angry  position.®^ 

Mr.  Davis  reiterated  his  objections  to  the  bill,  claiming 
that  the  distinctions  or  discriminations  made  between  ne- 
groes and  whites  on  steamboats,  in  railway  cars,  in  hotels 
and  in  churches,  would  be  swept  aside  by  the  bill.^^  Messrs. 
Doolittle,  Saulsbury  and  McDougall  also  spoke  in  support 
of  the  veto. 

The  bill  passed  the  Senate,  notwithstanding  the  objections 
of  the  President,  by  the  necessary  two  thirds  vote,  on  April 
6,  1866.     The  final  vote  was  33  to  15.^*  -  -" 

Mr.  Wright,  of  New  Jersey,  who  had  been  sick  for  some 
time,  was  brought  into  the  Senate  chamber  for  the  purpose 
of  sustaining  the  veto.  Mr.  Dixon,  of  Connecticut,  the  only 
Senator  not  voting,  was  also  sick,  but  would  have  been 
brought  in  had  it  been  seen  that  his  vote  would  sustain  the 
veto.  Mr.  Stockton's  place  had  not  yet  been  filled,  though 
strenuous  efforts  had  been  made  by  Thaddeus  Stevens  and 
others  to  have  this  done,  for  there  was  fear  among  the  Radi- 
cals that  the  veto  might  be  sustained.  Had  Mr.  Stockton  re- 
tained his  seat,  with  the  vote  of  Mr.  Dixon,  the  bill  would 
not  have  been  passed.  Mr.  Morgan,  who  had  sustained  the 
veto  of  the  Freedman's  Bureau  Bill,  was  applauded  when  he 
voted  for  the  bill,  for  he  was  the  only  one  who  was  regarded 
as  at  all  doubtful. 

Mr.  Edmunds,  who  had  been  appointed  to  fill  the  va- 
cancy created  by  the  death  of  Mr.  Foote,  took  his  seat  April 
5,  the  day  before  the  vote  was  taken.  The  fear  on  the  part 
of  the  Republicans  that  the  veto  might  be  sustained  made 
them  resort  to  every  possible  means  to  obtain  their  end. 
Mr.  Stockton,  who  had  been  duly  elected  Senator  from  New 

'* "  I  will  tell  the  President  and  everybody  else  that  if  God  Al- 
mighty has  stricken  one  member  so  that  he  cannot  be  here  to 
uphold  the  dictation  of  a  despot,  I  thank  him  for  His  interposition 
and  I  will  take  advantage  of  it  if  I  can."     Globe,  p.  1786. 

"  Ibid.,  p.  1786. 

•"Ibid.,  Appendix,  p.  183. 

"Ibid.,  p.   1809. 


Freedmen's  Bureau  and  Civil  Rights  Bills.         39 

Jersey,  but  against  whose  election  certain  members  of  the 
New  Jersey  Legislature  had  protested,  was  now  slated  for 
rejection.  His  credentials  had  been  passed  upon  by  the 
Judiciary  Committee,  of  which  Mr.  Trumbull  was  Chair- 
man, and  his  election  declared  to  be  legal. 

The  Committee  had  made  their  report  January  30,  Mr. 
Clark,  of  New  Hampshire,  being  the  only  member  of  the 
committee  who  did  not  approve  the  report.  No  action  what- 
ever had  been  taken  upon  the  report  and  there  is  little  prob- 
ability that  Mr.  Stockton's  right  to  his  seat  would  ever  have 
be'en  called  in  question  had  the  Republican  majority  been 
sufficient  without  unseating  him,  for  otherwise  the  delay 
in  regard  to  his  case  cannot  be  accounted  for.  When  it 
was  seen  that  the  Civil  Rights  Bill  was  in  great  jeopardy, 
and  that  the  Radical  plan  of  reconstruction  would  conse- 
quently be  endangered,  it  was  decided  to  get  rid  of  Stock- 
ton. So  on  March  22,  his  case  was  brought  before  the 
Senate.  This  was  four  days  after  the  Civil  Rights  Bill  had 
been  placed  in  the  hands  of  the  President.  Many  Radicals 
voted  to  permit  Mr.  Stockton  to  keep  his  seat,  and  had  his 
colleague,  Mr.  Wright,  been  present  he  would  have  retained 
it.  Mr.  Wright  had  paired  with  Mr.  Morrill,  of  Maine,  on 
the  question  before  he  left  the  city,  but  the  latter,  after  giv- 
ing Mr.  Stockton  notice  that  he  considered  the  pair  at  an 
end,  voted.  To  show,  however,  that  he  had  compunctions 
about  it,  he  did  not  vote  when  his  name  was  first  called,  but 
after  the  roll  call  had  been  completed,  and  seeing  it  within 
his  power  to  decide  the  question,  pressure  having  been 
brought  to  bear  by  Sumner  and  others,  he  voted.  The  final 
vote  by  which  Mr.  Stockton  was  unseated  was  taken  on 
March  27,  after  the  veto  message  of  the  bill  had  been  re- 
ceived, but  before  it  was  read.  Strenuous  eflforts  were  made 
to  postpone  final  action  until  Mr.  Wright  could  get  to  the 
city,  but  these  efforts  were  futile. 

.No  debate  was -permitted  in  the  House,  the  bill  passing 
that  body  on  the  ninth  of  April  by  a  vote  of  122  to  41 ». 
The  following  Republicans,  Noel,  Raymond  and  Whaley,  in 


40  Adoption  of  the  Fourteenth  Amendment. 

addition  to  those  who  voted  with  the  minority  before,  voted 
to  sustain  the  veto.  , 

/^  Mr.  Colfax,  the  Speaker,  requested  the  Qerk  to  call  his\ 
/  name,  his  vote  being  greeted  with  applause.     His  announce-  \ 
/    ment  that  the  bill,  the  objections  of  the  President  to  the    i 
I     contrary  notwithstanding,  had  become  a  law,  was  received  j 
\    with  great  applause,  both  by  members  of  the  House  and  the/ 
\    throng  in  the  galleries,  the  hisses  of  a  few  sorrowful  soldiej« 
being  unnoticed  in  the  general  joy.^^ 

We  may  conclude,  then,  that  many  of  the  j,liles.t..men  in 
Congress,  including  strong  men  in  Ifie  Republican  party 
I  like  Doolittle,  Cowan,  Raymond,  and  Bingham,  thought 
that  Congress  was  going  beyond  its  power  in  passing  the 
Civil  Rights  Bill.  All  those  who  opposed  the  bill,  not  only 
took  the  position  that  it  was  unconstitutional,  but,  mpsi,"of 
tlieiTr  thought  it  unwise  and  Jnexpedient_  Many  even  of 
those  who  supported  it  admitted  that  it  undertook  to  regu- 
late affairs  that  had  uniformly  been  regarded  as  belonging 
exclusively  to  the  States.  While  not  regarding  the  bill  as 
conferring  the  right  of  suffrage,  or  as  interfering  with  the 
state  laws  as  to  the  inter-marriage  of  the  races,  though  many 
strong  legal  minds  thought  it  would  have  that  result,  it  can- 
not be  questioned  but  that  it  conferred,  or  proposed  to  con- 
fer, upon  the  freedmen  rights  which  would  greatly  interfere 
with  state  legislation.  Many  believed  that  the  negro  would 
be  entitled  to  sit  on  juries,  to  attend  the  same  schools,  etc., 
since,  if  the  States  undertook  to  legislate  on  those  matters,  it 
might  be  claimed  that  he  was  denied  the  equal  rights  and 
privileges  accorded  to  white  men.  It  does  not  appear  that 
all  of  these  contentions  were  specifically  contradicted.  It 
would  seem  reasonable  to  suppose  that  if  the  bill  should 
prove  to  be  constitutional  that  these  rights  could  not  be 
legally  denied  them. 

Having  seen  what  Congress  thought  of  the  bill,  it  might 
be  well  to  see  what  the  people  thought  of  it — what  rights 
and  privileges  they  regarded  as  being  conferred  by  it.  As 
is  to  be  expected,  we  find  the  press  of  the  country  divided 

"Ibid.,  p.  1861,  and  N.  Y.  Herald,  April  10,  1866. 


Freedmen's  Bureau  and  Ciznl  Rights  Bills.        41 

on  it,  largely  along  political  lines,  just  as  was  the  case  in 
Congress.  The  Southern  press  was  naturally  hostile  to  the 
legislation.  The  Southern  mind  had  long  been  taught  to 
"regard  the  Federal  Government  as  one  of  very  limited 
powers,  and  any  legislation  which  tended  to  increase  that 
power  at  the  expense  of  the  States,  would  obviously  be  con- 
demned. Consequently  we  find  the  Southern  press  de- 
nouncing the  bill  as  infringing  the  rights  of  the  States  and 
centralizing  all  or  very  nearly  all  power  in  the  Central  Gov- 
ernment.^® Furthermore,  the  South  was  the  section  which 
would  be  affected  by  it  and  that  section  would  never  con- 
sent to  any  legislation  that  tended  towards  equality  with 
the  negroes. 

Many  papers  at  the  North  took  a  similar  view,  among 
them  being  the  World,  the  Herald,  and  the  Times.  The 
Cincinnati  Commercial  also  threw  the  weight  of  its  edi- 
torial columns  upon  this  side.  All  of  these  except  the  World 
were  Republican  papers.  The  press,  even  more  than  mem- 
bers of  Congress,  gave  a  broad  and  liberal  meaning  to 
the  bill,  saying  that  under  cover  of  "  full  and  equal  rights  " 
state  laws  forbidding  amalgamation  would  be  set  aside  and 
that  negroes  could  not  be  kept  out  of  theaters,  churches, 
etc.®^  The  Cincinnati  Commercial,  a  conservative  Republi- 
can paper,  thought  that  the  bill  was  unconstitutional,  in  that 
it  would  open  the  schools,  hotels,  churches,  theaters,  con- 
cert halls,  etc.,  to  negroes  on  the  same  terms  with  white 
people,  and  that  it  would  make  it  a  crime  to  refuse  them 
these  rights.®^ 

This  was  also  the  opinion  of  the  National  Intelligencer  of 
Washington,  the  so-called  Administration  organ. 

The  Tribune,  of  which  Greeley  was  the  editor,  was  a 
strong  supporter  of  the  measures  and  policies  of  the  Radi- 
cals, but  had  very  little  to  say  about  the  Civil  Rights  Bill 
further  than  that  it  was  a  just  measure  and  should  be 
adopted.     It  never  denied  the  contention  of  many  that  it 

"Charleston  (S.  C.)  Courier,  April  11,  1866. 
"N.  Y.  Herald,  March  29,  1866. 
''March  30,  1866. 


42  Adoption   of   the  Fourteenth  Amendment. 

would  curtail  the  rights  of  the  States.  The  New  York 
Evening  Post,  a  Republican  paper,  advocated  the  bill,  ap- 
parently thinking  that  it  would  guarantee  free  speech  and 
free  press,  which,  in  its  opinion,  was  badly  needed  in  the 
South.  The  right  to  hold  office  and  to  serve  on  the  jury 
was  not  considered  as  among  the  rights  secured  by  the 
bill,*®  but  the  right  peacefully  to  assemble,  to  petition,  to 
have  freedom  of  movement,  to  have  impartial  protection  of 
life,  person  and  property  were.''*'  It  was  also  held  that  the 
right  to  keep  fire-arms  would  be  secured  to  the  negroes  on 
the  same  terms  as  to  whites.''^^ 

It  was  declared  by  a  strong  opponent  of  the  bill  that  every 
argument  in  its  favor  savored  of  centralization,  and  that 
the  President  had  properly  characterized  it  when  he  said  it 
was  a  great  stride  towards  consolidation.  State  laws  against 
miscegenation  would  be  made  void  by  it,  the  ministers  or 
magistrates  refusing  to  marry  those  of  different  races  being 
made  subject  to  fine  and  imprisonment.  If  the  bill  became  a 
law  the  state  governments  would  practically  be  aboli&bed ; 
if  Congress  could  confer  civil  rights,  it  could  with  equal 
propriety  confer  political  rights,  since  to  do  either  required 
an  invasion  of  the  province  of  the  States.^^ 

The  statement  that  miscegenation  would  not  only  be  pos- 
sible under  the  bill,  but  that  state  laws  against  it  would  be 
nullified,  may  seem  rather  extreme,  though  we  have  already 
seen  that  this  view  was  taken  by  some  while  the  bill  was  be- 
fore Congress.  If  these  statements  were  limited  to  oppon- 
ents of  the  bill  and  to  partisan  newspapers,  we  might  discard 
them  at  once  as  preposterous.  There  are,  however,  facts 
of  greater  weight  than  these  mere  statements.  A  negro 
preacher  married  a  white  man  and  a  negro  woman  in  the 
State  of  Tennessee,  for  which  he  was  fined  $500,  while  the 
parties  to  the  marriage  contract  were  imprisoned,  being 
unable  to  pay  the  fine  of  $50,  which  was  imposed  on  each 
of  them.     The  Tribune,  after  recounting  this,  expressed  the 

~N.  Y.  Post,  March  28,  1866. 
"Ibid.,  March  30  and  April  3,  1866. 
"Ibid.,  April  7,  1866. 
"World,  March  28,  1866. 


Freedmen's   Bureau  and  Civil  Rights  Bills.        43 

desire  that  the  case  be  brought  before  the  Supreme  Court  of 
the  United  States  for  adjudication  under  the  Civil  Rights 
Bill.^^  A  case  somewhat  similar  to  this,  and  said  to  be  the 
first  case  of  its  kind  in  Mississippi,  occurred  at  Jackson  in 
June,  1866.  The  parties  were  tried,  found  guilty,  and  sen- 
tenced to  the  county  jail  for  six  months,  with  fine  of  $500 
each.  The  military  officers  looked  on,  but  offered  no  inter- 
ference.'^* The  Civil  Rights  Bill  was  probably  the  basis  of 
both  of  these  incidents. 

One  writer  declared  that  Senator  Trumbull's  speech  on 
the  veto  of  the  bill  affirmed  a  principle  "  pregnant  with  dan- 
ger to  the  rightful  authority  and  jurisdiction  of  the  States." 
"  Instead  of  overthrowing  the  vital  objection  urged  in  the 
veto  rnessage,"  this  writer  declared,  "  Mr.  Trumbull  in 
reality  conceded  all  that  it  involves,"  since  he  neither  denies 
nor  shows  that  the  bill  does  not  include  and  cover  subjects 
in  regard  to  which  the  States  have  up  to  this  time  exclu- 
sively legislated.^^ 

In  the  Cincinnati  Commercial,  it  was  argued  that  the  bill 
was  more  deserving  of  the  veto  than  the  Freedmen's  Bureau 
Bill,  since  it  was  an  attempt  to  take  from  the  States  the  right 
reserved  to  them  by  the  Constitution  to  enact  and  enforce 
their  own  police  regulations,  and  that  Congress  did  not 
have  the  power  to  declare  state  laws  null  and  void,  this 
being  a  question  for  the  Courts  to  determine.'^^  Such  legis- 
lation as  the  Civil  Rights  and  Freedmen's  Bureau  Bills  was 
declared  to  be  revolutionary  in  its  character  from  the  fact 
that  it  took  from  the  local  authorities  and  legislators  mat- 
ters that  had  uniformly  been  referred  to  them.'^''^ 

The  bill  was  regarded  as  tlie  death  blow  to  the  States  in 
that  the  state  judiciary  would  practically  be  abolished  by  it, 
since  the  state  courts  could  only  act  under  powers  granted 
by  the  Federal  Gove:nimS]tlt.--It-was  also  asserted  that  the 

"  N.  Y.  Times,  July  16,  1866,  under  caption :  "  Amalgamation  in 
Tennessee." 
"Gamer,  Reconstruction  in  Mississippi,  p.   114. 
"Editorial   in  Times,   April  7,    1866. 
'•  March  27,  1866. 
"Ibid.,  March  29,   1866. 


44  Adoption   of  the  Fourteenth  Amendment. 

measure  carried  Federal  interference  into  privacies  into 
which  even  the  most  local  laws  never  entered,  for  the  cus- 
toms of  a  community  were  made  amenable  to  Federal 
authority — an  authority  entirely  foreign  to  the  community. 
At  a  public  sale  of  church  pews,  it  was  declared  negroes 
could  not  be  prevented  from  purchasing,  while  a  white  man 
could  if  he  were  objectionable  to  the  church  or  the  customs 
of  the  church,  since  such  refusal  would  not  be  made  on 
account  of  color.  The  same  would  be  true,  it  was  urged, 
in  regard  to  hotels  and  other  places  of  accommodation,  for 
if  a  negro  was  refused  admittance,  the  proprietor  would 
be  subject  to  both  fine  and  imprisonment,  while  a  white  man 
could  only  recover  civil  damages  however  wrongfully  he 
might  have  been  refused  accommodations.'^* 

A  mass  meeting  of  the  citizens  of  Carroll  County,  at 
Westminster,  Maryland,  May  19,  1866,  adopted  a  series  of 
resolutions,  one  of  which  was  a  declaration  that  the  Civil 
Rights  Bill  was  unconstitutional,  and  that  if  carried  into 
effect  would  upheave  the  foundations  of  social  order. 
These  resolutions  were  sanctioned  both  by  the  Republicans 
and  Democrats.'^® 

The  belief  that  the  bill  conferred  upon  the  negroes  the 
right  of  attending  churches  and  theaters  was  not  limited  to 
the  so-called  loyal  States,  for  this  opinion  was  also  held  in 
the  South,  and  the  desire  was  expressed  that,  if  it  was  to 
be  enforced  in  this  respect,  it  be  first  enforced  in  Boston. 
"  What  that  city  has  so  effectually  sowed,"  it  was  declared, 
"  let  it  reap  !  "  *°  The  view  was  also  held  in  the  South  that 
the  Civil  Rights  Bill  not  only  infringed,  but  that  it  de- 
stroyed, the  rights  of  the  States  by  concentrating  all  power 
in  the  Central  Government,  by  making  the  state  judiciary 
amenable  and  subservient  to  Federal  authority,  and  by  con- 
ferring upon  Congress  powers  unknown  to  the  original  law 
of  the  country.*^  A  view  of  the  bill  not  generally  taken 
by  the  Southern  press  was  that  taken  by  the  Mobile  Regis- 

"  National  Intelligencer,  March  24,  1866. 
"N.  Y.  Herald,  May  26,  1866. 
*•  Atlanta  Intelligencer,  May  3,  1866. 
^  Charleston  Courier,  April  2,  1866. 


Freedmen's  Bureau  and  Civil  Rights  Bills.        45 

ter.  This  journal  did  not  think  that  the  bill  would  inter- 
fere with  the  regulations  and  customs  of  steamboats,  rail- 
roads, street  cars,  theaters,  or  other  places  of  public  resort.®^ 

It  is  apparent,  from  this  examination,  that  many  of  the 
leading  papers  of  the  country,  including  some  of  the  prin- 
cipal Republican  papers,  regarded  the  Civil  Rights  Bill  as 
a  limitation  of  the  powers  of  the  States,  and  as  a  step 
towards  centralization,  in  that  it  interfered  with  the  regu- 
lation of  local  affairs  which  had  hitherto  been  regulated  by 
state  and  local  authorities  or  by  custom.  This  opinion  was 
.  held  in  the  North  as  well  as  in  the  South,  There  also  seems 
to  have  been  a  general  impression  among  the  press  that 
negroes  would,  by  the  provisions  of  the  bill,  be  admitted, 
on  the  same  terms  and  conditions  as  the  white  people,  to 
schools,  theaters,  hotels,  churches,  railway  cars,  steam- 
boats, etc. 

The  bill  enumerated  certain  specific  rights,  such  as  the 
right  to  testify,  to  sue,  be  sued,  etc.,  but  it  was  generally 
felt  that  more  than  these  enumerated  rights  were  conferred, 
and  that  under  its  provisions  negroes  could  not  be  kept  out 
of  the  jury-box,  and  that  they  were  to  have  equal  rights 
with  the  whites  in  every  respect,  even  to  the  right  of  inter- 
marriage. The  right  of  intermarriage,  however,  was  not 
so  generally  held  to  be  conferred  by  the  bill,  but  the  other 
opinions,  it  seems,  were  clearly  warranted,  both  by  the  con- 
text of  the  bill  and  by  the  declarations  of  some  of  its 
supporters. 

What  the  papers  gave  as  their  opinion  must  necessarily 
have  been  the  opinion  of  large  numbers  of  the  people. 
There  is  much  evidence  to  substantiate  this  conclusion,  for 
almost  immediately  after  the  passage  of  the  bill  over  the 
President's  veto,  efforts  were  made  by  the  negroes  to  secure 
these  rights. 

"  Quoted  in  Cincinnati  Commercial,  April  21,  1866.  The  Mem- 
phis Argus  practically  held  the  same  opinion  as  the  Charleston 
Courier,  stating  that  it  consolidated  all  power  in  the  hands  of 
Congress.  The  Cincinnati  Commercial  of  April  21  quoted  the 
Argus  on  this  point,  but  did  not  deny  its  interpretation  of  the  bill, 
merely  saying  that  a  part  of  the  bill  was  similar  to  the  fugitive 
slave  law. 


46  Adoption   of   the  Fourteenth  Amendment. 

About  two  weeks  after  the  bill  had  passed  Congress,  two 
so-called  tfeeclmen,"  In  order  to  see  whether  the  bill  had 
really  benefited  them  in  a  practical  way,  went  to  a  sleeper 
and  demanded  accommodations  as  a  train  was  about  to 
leave  Washington  for  New  York.  The  demand  was  re- 
fused them  at  the  request  of  the  other  passengers  fall  said 
to  be  New  Englanders),  who  threatened  to  leave  the  car  if 
the  negroes  were  admitted.  The  negroes  thereupon  threat- 
ened prosecution  under  the  Civil  Rights  Bill  and  took  their 
departure. ^^  Two  or  three  incidents  occurred  in  Baltimore 
at  an  earlier  date.  A  negro  asserted  the  right  to  ride  in  a 
railway  car  on  the  York  Road  among  the  other  passengers, 
and  when  compelled  to  go  to  the  front  platform  where  col- 
ored persons  were  allowed  to  ride,  noted  the  number  of  the 
car,  probably  to  bring  suit,  and  departed.  On  the  same 
night,  another  negro,  James  Williams,  appeared  at  the  ticket 
office  of  the  Holliday  Street  Theater,  and  asked  for  a  ticket, 
which  was  of  course  refused.  The  next  night  another 
negro  went  to  a  public  house  and  asked  for  a  drink,  and  on 
the  refusal  of  the  proprietor  to  sell  him  the  liquor,  went 
away  to  file  complaint  at  the  station,  claiming  that  "  as  a 
citizen  he  was  entitled  to  the  same  privileges  as  white 
men."**  Before  the  middle  of  May  the  Baltimore  &  Ohio 
Railroad  Company  had  a  suit  pending  against  it  for  refus- 
ing to  sell  a  negro  a  first-class  ticket.  It  was  also  stated 
that  several  suits  had  been  brought  in  Baltimore  and  other 
parts  of  the  country  against  persons  refusing  to  admit 
negroes  to  entertainments  from  which  they  were  at  that 
time  excluded  by  state  or  municipal  laws.*^  The  editor  of 
the  National  Intelligencer,  commenting  upon  these  facts, 
observed  that  if  the  bill  was  constitutional  it  would  be  diffi- 
cult to  see  how  negroes  could  be  debarred,  except  at  the 
risk  of  a  suit,  from  going  into  hotels,  theaters,  restaurants, 
billiard  rooms,  or  any  licensed  house  where  men  have  a 
legal  right  to  accommodations.     Towards  the  last  of  April 

^  Cincinnati  Commercial,  April  30,  1866. 

"  National  Intelligencer,  April  24,  1866,  also  Baltimore  American, 
April  16,  1866. 
■"Ibid.,  May  16,   1866. 


Freedmen's  Bureau  and   Civil  Rights  Bills.        47 
the  negroes  of  New  York  began  to  "  feel  their  civil  rights  " 

T^  _  ''■'  i.-»rfl,  ^ JMjr     I  " II    I         IMI    ■    ■UBII      ■     I     '   ii       ~i    Wit 

— foiir  or  nve  going  into  a  fashionable  restaurant,  sitting 
down  among  white  ladies  and  gentlemen,  and  appealing  to 
the  Civil  Rights  Bill  to  protect  them  from  ejectment.^^ 
The  editor  referring  to  this  incident  said  the  same  game 
would  probably  be  tried  at  the  churches,  theaters  and  other 
resorts,  but  that  after  some  annoyance  and  inconvenience, 
the  negroes  would  be  quietly  regulated  by  public  opinion. 
It  was  also  stated®^  that  the  negroes  of  Boston  proposed  to 
contest  the  power  of  theater  managers,  church  wardens, 
etc.,  to  exclude  them  from  mingling  with  the  whites  in  an 
"  equality  "  of  position.  They  evidently  carried  out  their 
intentions,  but  were  excluded  from  the  theaters,  since  only 
a  nominal  fine  was  imposed  by  the  law  which  had  been 
passed  on  that  subject.^*  There  were  several  occurrences 
in  the  North  and  West  where  negroes  claimed  the  right  to 
attend  places  of  amusement  to  the  discomfiture  of  white 
ladies.  The  editor  added  that  the  South  would  have  to 
endure  the  same  thing,  though  not  responsible  for  it.*^ 

The  first  suit  under  the  Civil  Rights  Bill  was  in  Indiana, 
and~Tii  this  case  the  bill  was  held  constitutional.  This  was 
the  case  of  Barnes  vs.  Browning.  Barnes,  a  negro,  sued 
Browning,  a  hotel  proprietor,  for  wages,  and  the  plea 
offered  by  Browning  was  that  Barnes  was  not  entitled  to 
sue  in  the  courts  of  Indiana,  since  he  had  come  into  the 
-"State  contrary  to  the  Constitution  of  the  State.  There  was 
a  provision  in  the  Indiana  Constitution  which  prohibited 
negro  immigration  and  declared  null  and  void  any  contracts 
made  with  such  persons.  There  was  also  a  law  to  enforce 
this  provision,  which  was  to  the  effect  that  no  negro  coming 
into  the  State  could  make  or  enforce  contracts. 

Barnes  demurred  to  the  answer  of  the  defendant  main- 
taining that  the  Indiana  law  and  Constitution  in  that  respect 
were  void,  because:  (i)  It  was  opposed  to  the  spirit  and 
letter  of  the  Constitution  of  the  United  States.     (2)  It  was 

"N.  Y.   Herald,  April  28,   1866. 
"Atlanta  Intelligencer,  April   18,   1866. 
"*  Cincinnati  Commercial,  May  2,  1866. 
"Atlanta  Intelligencer,  April  26,  1866. 


48  Adoption   of   the  Fourteenth  Amendment. 

in  conflict  with  the  13th  Amendment.  (3)  It  was  void 
under  the  first  section  of  the  Civil  Rights  Bill.  The  lower 
court  sustained  the  demurrer,  and  the  case  was  brought 
before  Judge  Test  of  the  Circuit  Court  by  way  of  appeal. 
He  sustained  the  decision  of  the  lower  court,  though  basing 
his  decision  on  the  13th  Amendment,  since  the  Civil  Rights 
"Biir  had  not  been  officially  promulgated.""  The  suit  was 
no  doubt  inspired  by  the  passage  of  the  bill,  for  it  was 
instituted  April  ii,  only  two  days  after  its  passage,  and 
reference  being  made  to  it  in  reply  to  the  plea  set  up  by 
the  defendant. 

This  decision  was  rendered  at  LaFayette,  Indiana,  April 
14,  1866,  just  five  days  after  the  passage  of  the  bill  by  Con- 
gress. Another  case  very  similar  to  this  one  was  decided 
by  the  Supreme  Court  of  Indiana  at  its  May  term.  Smith, 
a  negro,  sued  Moody  to  collect  a  promissory  note.  The 
same  plea  was  set  up  in  this  case  as  in  the  other,  the  lower 
court  deciding  in  favor  of  Moody.  The  Supreme  Court, 
however,  reversed  this  decision,  holding  that  the  Civil 
Rights  Bill  had  nullified  the  provision  of  the  Indiana  Con- 
stitution prohibiting  negroes  from  coming  into  the  State 
or  making  contracts."^  This  was  probably  the  first  decision 
of  the  highest  court  in  any  State  in  which  the  Civil  Rights 
Bill  was  involved. 

Probably  the  second  case  in  which  the  measure  was 
brought  before  the  Courts  was  at  Annapolis,  Maryland. 
Here,  on  April  17,  a  negro  was  introduced  as  a  witness. 
The  State's  Attorney  was  greatly  surprised  at  this,  saying 
that  there  was  no  authority  for  it,  but  it  was  claimed  that 
the  Civil  Rights  Bill  had  given  it."^  Soon  after  the  Four- 
teenth Amendment  had  been  submitted  to  the  States,  th,e 
C^ief  Tustice  of  the  Court  of  Appeals  of  Maryland  held 
that  the  Civil  Rights  Bill  was  constitutional.  On  June  22 
one~Somers  assaulted  a  negro  and  was  brought  before  a 
justice  of  the  peace.     His  counsel  held  that  the  negro  could 

'"  McPherson's   Scrap-^book,   "The   Civil  Rights   Bill,"  pp.   91-92, 
also  the  Chicago  Republican,  April  17,  1866. 
"  26  Indiana  Reports,  p.  299. 
"Baltimore  American,  April  20,  1866. 


Freedmen's  Bureau  and  Civil  Rights  Bills.        49 

not  testify,  but  the  justice  held  that  the  state  law  had  been 
abrogated  by  the  Civil  Rights  Bill.  In  default  of  bond, 
Somers  was  put  in  jail.  Effort  was  made  to  secure  a  writ 
of  habeas  corpus,  but  Judge  Bowie  upheld  the  decision  of 
the  justice,  saying  that  the  bill  was  constitutional  in  regard 
to  the  right  to  testify.  Since  the  other  provisions  of  the 
bill  were  not  involved,  he  did  not  undertake  to  say  whether 
they  were  constitutional  or  not."^  More  than  a  month 
before  this  Judge  Thomas,  of  the  Circuit  Couri:  ot  Virginia, 
in  a  case  before  him  at  Alexandria,  declared  that  the  Civil 
Rights  Bill  was  unconstitutional  and  that  negro  evidence 
could  not  be  admitted,  since  the  state  law  forbade  it  in  civil 
cases  in  which  white  men  alone  were  parties.  In  his  opin- 
^ion  Congress  did  not  have  the  power  to  impair  the  right  of 
the  States  to  decide  what  classes  of  persons  were  competent 
to  testify  in  their  Courts.** 

The  first  case  which  we  have  found  where  the  constitu- 
tionality of  the  bill  was  decided  in  the  Federal  courts  is  that 
of  the  United  States  vs.  Rhodes,  decided  by  Justice  Swayne, 
of  the  Supreme  Court,  sitting  as  a  Circuit  Justice.  On  May 
I,  1866,  the  home  of  Nancy  Talbot,  a  negress,  was  entered 
by  white  men  named  Rhodes  for  the  purpose  of  robbery. 
She  was  not  allowed  to  testify  against  them  in  the  Kentucky 
Courts.  The  Federal  Court  had  jurisdiction  under  the  Civil 
Rights  Bill.  Justice  Swayne  said  the  bill  was  remedial  and 
should  be  liberally  construed ;  that  the  Thirteenth  Amend- 
ment was  the  first  Amendment  which  trenched  upon  the 
power  of  the  States,  the  others  limiting  the  power  of  the 
Federal  Government ;  that  the  Congress  succeeding  the  one 
which  proposed  that  Amendment  had  passed  the  bill,  many 
of  the  members  being  the  same,  and  that  this  fact  was  not 
"  without  weight  and  significance."  The  bill  was  declared 
to  be  constitutional  in  all  its  provisions.®" 

A  negro  was  indicted  in  Memphis,  Tennessee,  for  keeping 

"*  Baltimore  American  and   N.   Y.   Times,  July  7,   1866. 
**  Annual    Cyclopedia,    1866,    p.    765.    Also    Eckenrode,    Political 
Reconstruction  in  Virginia,  p.  50. 
*  Abbott   (U.  S.),  28,  and  37  Federal  Cases,  785. 

4 


50         Adoption   of  the  Fourteenth  Amendment. 

a  tippling  house  and  billiard  room  contrary  to  state  law. 
His  attorneys  claimed  that  the  state  law  was  annulled  by 
the  Civil  Rights  Bill,  but  the  State's  Attorney  declared  that 
he  would  not  obey  or  observe  that  bill,  since  it  was  uncon- 
stitutional.^* The  Criminal  Court  of  the  city,  however,  sus- 
tained the  contention  of  the  defendant  that  the  state  law  was 
null  and  void  because  in  conflict  with  the  Civil  Rights  Bill. 
An  appeal  was  taken  to  the  Supreme  Court  of  the  State.*^ 

Judge  Gilpin,  Chief  Justice  of  Delaware,  held  that  the 
Civil  Rights  Bill  was  void  and  inoperative  in  so  far  as  it 
assumed  to  regulate  the  rules  of  evidence,  etc.,  of  state 
courts.  This  decision  was  rendered  in  November,  1867, 
though  prior  to  this  he  seems  to  have  accepted  that  part  of 
the  bill  which  provided  that  a  different  punishment  could  not 
be  inflicted  on  account  of  color,  without,  however,  passing 
on  the  constitutionality  of  the  bill.  It  may  be  proper  to  add 
that  he  was  a  Republican.®* 

Several  arrests  were  made  for  refusing  to  receive  negfro 
testimony.  Five  magistrates  of  the  Corporation  Court  of 
Norfolk  were  arrested  for  this,  the  United  States  Commis- 
sioner holding  that  they  had  violated  the  Civil  Rights  Bill 
and  binding  them  over  for  trial  at  the  May  term  (1867)  of 
the  District  Court.*®  '  Judge  Thomas,  who  refused  to  re- 
ceive negro  testimony  at  Alexandria,  was  arrested  and  taken 
to  Richmond,  where  he  was  released  on  his  own  recognizance 
in  the  sum  of  $1,000  to  appear  at  the  November  term  of  the 
Court.^°"  Judge  Magruder,  of  Maryland,  was  several  times 
arrested  for  a  similar  offence.  John  Hopwood,  a  Justice  of 
the  Peace,  of  the  same  State,  was  also  arrested. 

The  Maryland  Legislature  passed  a  law  to  reimburse  any 
magistrate  or  judge  for  costs  and  fines  to  which  they  were 
liable  for  rendering  decisions  adverse  to  the  Civil  Rights  Bill. 
It  was  stated  in  the  bill  that  this  was  done  for  the  purpose 

••Baltimore  American,  April  21,  1866.     (From  Memphis  Argus.) 
"McPherson's    Scrap-book,    "The     Civil    Rights    Bill,"    pp.    no 

and  119. 
"  Ibid.,  p.  149. 
Ibid.,  p.  134. 

•    ^°«Ibid.,  p.  136. 


Freedmen's  Bureau  and  Civil  Rights  Bills.        51 

of  making  the  judiciary  free — to  enable  the  judicial  officers 
to  render  decisions  according  to  their  views  of  the  law.^"^ 
Judge  Abell,  of  Louisiana,  was  arrested  July,  1866,  being 
charged  with  having  "  wickedly,  wilfully,  and  with  malice 
aforethought "  declared  the  Civil  Rights  Bill  unconstitu- 
tional. The  decision  for  which  he  was  arrested  was  made 
May  9,  1866.  In  this  decision  he  declared  that  it  aimed  to 
strike  down  the  independence  of  the  States,  to  sap  the 
foundation  of  Republican  Government,  to  override  the  laws 
of  the  States,  and  to  obliterate  every  trace  of  the  independ- 
ence of  the  state  judiciaries.^*'- 

Chief  Justice  Hardy,  of  Alabama,  declared  that  the  bill 
was  unconstitutional,  confirming  the  sentence  of  the  lower 
court  which  had  convicted  a  negro  for  carrying  fire-arms 
contrary  to  state  law.^°^  J^dge  Harberson,  of  Kentucky, 
held  the  bill  unconstitutional,  as  did  also  the  city  judge  of 
Louisville,  in  the  same  State.  The  former  declared  that  the 
right  to  testify  was  not  essential  to  freedom  as  was  shown  by 
the  action  of  the  free  States  in  denying  that  right  to  free 
negroes  for  eighty  years  in  cases  where  whites  were  involved. 
He,  therefore,  decided  that  the  bill  was  not  "  appropriate 
legislation  "  under  the  Thirteenth  Amendment,  and  that  if  it 
was,  it  could  not  apply  to  those  who  were  free  before  the 
Amendment  was  ratified.^"*  This  was  practically  the  position 
taken  by  Judge  Krecket,  of  the  United  States  District  Court, 
January  29,  1867,  for  he  held  that  the  Civil  Rights  Bill  was 
intended  to  protect  negroes  who  had  been  slaves,  and  did  not 
include  white  persons  at  all.^"''  It  was  stated  that  the  bill 
had  been  held  unconstitutional  in  Nevada,  but  no  reference 
to  the  case  was  giveu,^*" 

A  negro  in  Gilmer  County,  West  Virginia,  sued  the  clerk 
of  the  county  court  for  refusing  to  sell  a  license  for  his  mar- 
riage with  a  white  woman.     It  was  stated  that  this  would 


*"*Ibid.,  pp.  no,  122,  134,  135. 
'"Ibid.,  pp.  112,  118. 
'■"Ibid.,  p.  120. 
'"Ibid.,  pp.  113,  115. 
'«Ibid.,  p.   134. 
•"■Ibid.,  p.  IIS. 


52  Adoption   of   the  Fourteenth  Amendment. 

bring  the  Civil  Rights  Bill  before  the  Courts.^"^  Judge  Wal- 
ton, of  Augusta,  Maine,  imposed  a  fine  of  $40  and  thirty 
days  imprisonment  on  a  negro  and  a  white  woman  for  hav- 
ing married  in  violation  of  the  state  law.  The  punishment 
was  so  light  because  the  parties  were  ignorant  of  the  law. 
Their  counsel  made  the  plea  that  the  Civil  Rights  Bill  allowed 
them  to  marry,  but  the  judge  was  unable  to  agree,  say- 
ing that  the  bill  could  not  alter  the  laws  of  the  State,  and 
that  the  marriage  was  null  and  void.  The  writer  reporting 
this  incident  stated  that  some  of  the  Radicals  were  exasper- 
ated from  the  fact  that  a  radical  judge  had  renounced  and  set 
at  naught  a  law  of  the  United  States  which  gave  the  negro 
the  same  rights  that  were  enjoyed  by  white  men.^"^  Under 
the  caption  "  Negroes  Getting  their  Civil  Rights,"  an  account 
was  given  of  a  negro  and  white  woman  before  the  court  in 
Nashville.  The  woman  was  slightly  fined  and  sent  to  the 
work  house,  while  the  negro  was  sent  to  the  Freedmen's 
Court."» 

In  addition  to  the  instances  we  have  already  given  in 
which  the  Civil  Rights  Bill  was  held  to  be  constitutional, 
there  are  several  others,  but  in  most  of  these  cases  the  ques- 
tion at  issue  was  as  to  the  right  to  testify.  As  early  as  June, 
1866,  the  Orphan's  Court  for  Baltimore  decided  that  negroes 
could  testify  under  the  Civil  Rights  Bill.^^"  The  same  pro- 
vision of  the  bill  was  held  to  be  valid  by  Judge  French,  of 
Washington  County,  Maryland.  He  followed  the  decision 
of  Judge  Bowie  rather  than  that  of  Judge  Magruder.^^^ 
Judge  Durrell,  of  the  United  States  District  Court  for  Louis- 
iana, held  the  bill  to  be  constitutional.^^^ 

The  Civil  Court  of  Detroit,  Michigan,  decided,  September, 
1866,  that  negroes  could  not  be  prevented  from  enjoying  any 
privilege  they  chose  and  could  pay  for.  The  case  before 
the  court  was  brought  by  a  negro  for  the  refusal  of  the  door- 

'"Ibid.,  p.  115. 

"^  Ibid.,  p.  136. 

"•Ibid.,  p.  113. 

"•Ibid.,  p.  113. 

">  Ibid.,  p.  132. 

'•"Ibid.,  p.  IIS. 


Freedman's  Bureau  and  Civil  Rights  Bills.         53 

keeper  to  admit  him  and  his  companions  to  the  main  body 
of  the  theater — they  being  directed  to  the  gallery.  The 
judge  in  this  case  was  said  to  be  a  Democrat/^^  The  United 
States  Commissioner,  at  Mobile,  Alabama,  decided  June  26, 
1867,  that  the  railway  company  of  that  city  could  not  pre- 
vent negroes  from  riding  in  the  same  cars  with  white  per- 
sons, since  to  do  so  was  in  violation  of  the  law,  evidently 
referring  to  the  Civil  Rights  Bill,  for  the  counsel  for  the 
negro  asked  that  the  president  of  the  company  be  bound  over 
to  the  Federal  Court  under  that  bill,  which  was  done.^^* 

Mayor  Horton  of  the  same  city,  an  appointee  of  the  mili- 
tary authorities,  banished  a  negro  boy  from  the  city,  this  not 
being  possible  in  regard  to  white  people.  He  was  indicted, 
tried,  and  found  guilty  for  violation  of  the  Civil  Rights  Bill. 
There  was  much  rejoicing  that  the  "  trap  made  to  catch  the 
Southerners  had  first  gobbled  up  a  yankee  official."^^^ 

Among  the  incidents  to  show  the  view  generally  taken  of 
the  bill  is  that  of  two  negro  women  of  Portsmouth,  Vir- 
ginia, who  tried  to  enter  the  cabin  on  a  ferryboat  intended 
for  ladies.^^®  A  similar  incident  occurred  in  Baltimore  as 
to  a  waiting  room  set  apart  for  ladies  at  one  of  the  depots.^^' 
Suits  were  instituted  in  both  cases  under  the  Civil  Rights 
Bill. 

There  were  other  incidents,  more  or  less  similar  to  those 
we  have  given,  in  which  attempts  were  made  by  negroes  to 
enjoy  the  same  privileges  accorded  to  white  persons.  There 
were  doubtless  a  number  of  similar  incidents  which  did  not 
receive  public  notice,  as  well  as  many  which  we  have  not 
observed. 

The  instances  we  have  cited,  however,  are  apparently  suffi- 
cient to  justify  the  conclusion  that  the  belief  prevailed  gen- 
erally— north,  east,  west  and  south — especially  among  the 
negroes,  that  the  Civil  Rights  Bill  gave  the  colored  people 
the  same  rights  and  privleges  as  white  men  as  regards  travel 


w 


"'  Ibid.,  p.  120 

"*  Ibid.,  p.  136. 

'"Ibid.,  p.  151. 

"•  N.  Y.  Tribune,  May  18  and  21,  1867. 

"' McPherson's  Scrap-book,  "The  Civil  Rights  Bill,"  p.   109. 


54  Adoption   of   the  Fourteenth  Amendment. 

schools,  theaters,  churches,  and  the  ordinaryrights  which 
may  be  legally  demanded.  There  also  seems  to  have  been  a 
less  general  belief  that  it  also  permitted  the  intermarriage  of 
the  races.  /  Many  of  these  cases  occurred  before  the  Four- 
teenth Amendment  passed  Congress.  Reference  was  also 
made  to  some  of  them  in  the  debates,  and  weight  must  be 
given  them  in  interpreting  the  purposes  of  the  Amendment, 
since  it  was  acknowledged  that  the  first  section  of  the 
Amendment  was  the  Civil  Rights  Bill  incorporated  into  the 
Constitution.  This  somewhat  extended  account  of  the  bill, 
therefore,  and  the  cases  arising  under  it,  have  been  given 
for  the  purpose  of  aiding  us  in  the  interpretation  of  that 
Amendment,  and  this  will  become  more  apparent  in  the 
chapters  that  are  to  follow. 


CHAPTER  II. 
The  Fourteenth  Amendment  Before  Congress. 

SECTION  one  of  THE  AMENDMENT. 

The  consideration  of  the  Amendment  itself  will  take  us 
back  in  point  of  time,  for  it  was  not  presented  as  a  whole 
at  first,  but  by  sections,  nor  were  these  sections  finally  acted 
upon  by  both  Houses  until  after  the  Civil  Rights  Bill  had 
been  disposed  of,  having  been  side  tracked  to  give  full  sway 
to  that  important  measure.  There  may  also  have  been  other 
considerations  which  caused  the  postponement  of  the  vari- 
ous amendments;  for  example,  to  let  the  Reconstruction 
Committee  formulate  and  present  its  entire  plan  of  recon- 
struction, to  give  it  time  to  secure  all  the  evidence  it  could 
to  aid  in  the  enactment  of  that  plan,  or  to  postpone  final 
action  until  after  the  spring  elections  in  some  of  the  New 
England  States,  so  that  the  Republican  interests  might  not 
be  affected  by  the  plan  of  reconstruction  proposed. 

The  Amendment  was  not  a  spontaneous  creation,  was  not 
the  product    of  one    mind,  but  of  many.     It  was    also    a 
product  of  evolution,  and  its  growth'  and  development  make 
an  interesting  study.     In  considering  this  evolution  of  the 
Fourteenth  Amendment,  it  seems  advisable  to  consider  each 
section  separately  in  order  to    rerider  the    connection  and 
meaning  more  clear  and  apparent!]  This  may  necessitate  a 
certain  amount  of  repetition,  but  we  trust  that  the  object 
aimed  at,  clearness,  will  justify  this  course. 
/'    The  first  section  is  by  far  the  most  important  section  of 
the  Amendment,  for  it  is  the  only  one  which  has  played  any     i 
/     very  noticeable  part  in  our  country's  history  or  has  had  any     I 
/      influence  whatever  upon  our  customs  or  legislation.    This    / 
/      section  also  underwent  more  changes  than  any  of  the  others  / 
'      before  receiving  the  form  in  which  it  now  stands  in  the  Con- ' 

55 


$6  Adoption   of  the  Fourteenth  Amendment. 

stitution.  In  the  various  forms  in  which  it  was  presented 
the  same  purpose  and  spirit  were  observable.  It  is  about 
this  section  also  that  there  has  been  so  much  contention  as  to 
its  meaning  and  object. ,/ 

^  Probably  the  interpretation  most  generally  given  and  most 
'readily  accepted  is  that  its  principal  and  almost  only  purpose 
was  to  define  citizenship ;  that  it  was  to  make  federal  citizen- 
ship primary,  a  citizen  of  the  United  States  becoming  by  resi- 
dence therein,  ipso  facto,  a  citizen  of  one  of  the  States.  The 
Courts  have  practically  given  this  interpretation  to  it,  declar- 
ing that  it  was  to  make  citizens  of  the  freedmen.  A  careful 
examination  of  the  proceedings  of  Congress  should  show 
whether  or  not  this  was  the  principal  object  originally 
aimed  at./ 

On  the  second  day  of  the  session,  December  5,  1865,  Mr. 
Stevens,  the  Republican  leader  in  the  House,  introduced  a 
joint  resolution  proposing  an  Amendment  to  the  Constitu- 
tion of  the  United  States.  It  was  in  the  following  form: 
"  All  national  and  state  laws  shall  be  equally  applicable  to 
every  citizen,  and  no  discrimination  shall  be  made  on  account 
of  race  and  color."  The  next  day,  Mr.  Bingham,  of  Ohio, 
introduced  a  resolutiqn  to  accomplish  the  same  object,  though 
the  forms  of  the  two  resolutions  were  quite  different.  The 
i  resolution  introduced  by  Mr.  Bingham  was  reported  back  by 
I  him  from  the  Reconstruction  Committee,  February  13,  1866, 

-  in  the  following  form :"  "  Article  .     The  Congress 

shall  have  power  to  make  all  laws  which  shall  be  necessary 
and  proper  to  secure  to  the  citizens  of  each  State  all  privi- 
t  1  leges  and  immunities  of  citizens  in  the  several  States,  and  to 
^  *  all  persons  in  the  several  States  equal  protection  in  the  rights 
of  life,  liberty,  and  property."  ^  This  was  practically  the 
form  in  which  it  had  been  introduced  December  6. 

Mr.  Bingham,  its  author,  in  bringing  this  resolution  before 
the  House,  February  26,  made  known  his  reason  for  propos- 
ing it  as  an  amendment.     He  stated  that  it  had  been  the 
Vdefect  of  the  Republic  that  there  was  no  express  grant 
of  power  in  the  Constitution  to  enable  Congress  to  enforce 

^  Globe,  39th  Cong.,  ist  Sess.,  pp.  14  and  813. 


Fourteenth   Amendment   Before    Congress.  57 

the  requirements  of  the  Constitution,  and  cited  the  fact  that 
the  contemporaneous  construction,  the  continued  construc- 
tion, legislative,  executive  and  judicial,  had  been  and  was  that 
the  provi^sions  of  the  immortal  Bill  of  Rights  embodied  in  the 
Constitution  rested  for  their  execution  and  enforcement  upor 
the  fidelity  of  the  States.^     In  this  brief  statement  he  re- 

jirealed  the  nature  and  purpose  of  the  Amendment.  It  meant 
nothing  less  than  the  conferring  upon  Congress  the  power  to 
enforce,  in  every  State  of  the  Union,~tEe'BilI  of  Rights,  as^ 
found  in  the  first  eight  Amendments.  If  his  purpose  shoulc 
succeed,  it  meant  that  Congress,  and  not  the  Legislatures  </f  I 
the  States,  would  be  empowered  to  legislate  concerning  all 
the  subjects  embraced  in  the  Bill  of  Rights,  thus  increasing 
the  power  of  the  Central  Government  at  the  expense  of  the; 
States, 

A  decided  opposition  to  the  resolution  was  manifested 
when  it  came  up  for  debate  the  next  day.  ]^^  Kelley,  of 
Pennsylvania,  declared  that  the  power  which  the  Amendment 
proposed  to  confer  was  already  in  the  Constitution,  but  that 
it  had  lain  dormant.  He  was,  therefore,  in  favor  of  sub- 
mitting it  to  the  States.  The  debate  was  of  a  general  and 
uninteresting  nature  with  the  exception  of  the  speech  by  Mr. 
Hale,  of  New  York,  who  declared  that  the  tenor  and  effect 
of  the  resolution  was  to  bring  about  a  more  radical  change  in 
the  system  of  government  and  to  institute  a  wider  departure 
from  the  theory  upon  which  it  was  founded  than  had  ever 
been  proposed  in  any  legislative  or  constitutional  assembly. 
"  I  submit,"  he  continued,  "  that  it  is  in  effect  a  provision 
under  which  all  state  legislation,  in  its  codes  of  civil  and 
criminal  jurisprudence  and  procedure,  affecting  the  indi- 
vidual citizen,  may  be  overridden,  may  be  repealed  or  abol- 
ished, and  the  law  of  Congress  established  instead."  He 
took  the  position  that  however  desirable  it  might  be  that 
there  should  be  reforms  in  state  law,  such  reforms  should  b^ 
made  by  the  States.  He  also  opposed  the  Amendment  on  thq 
ground  that  its  language  was  too  vague  and  general,  that, 

.  at  a  single  stride,  it  put  almost  unlimited  power  in  the  hands 

'  Ibid.,  p.  1034. 


58  Adoption   of  the  Fourteenth  Amendment. 

of  Congress,  and  that  the  words  "  necessary  and  proper  " 
had  already  been  given  a  liberal  construction  by  the  Courts.' 

Mr.  Davis,  also  of  New  York,  continued  the  debate  the  fol- 
lowing day  in  opposition  to  the  resolution.  He  thought  that 
the  Amendment,  if  adopted,  would  not  only  centralize  power 
in  the  Federal  Government  and  that  that  power  was  "  in- 
tended to  be  exercised  in  the  establishment  of  perfect  political 
equality  between  the  colored  and  the  white  race  of  the 
South."  The  Amendment,  he  asserted,  was  a  grant  of 
power  to  Congress  to  enact  original  legislation  in  regard  to 
life,  liberty,  and  property,  and  that  Congress  was  to  be  the 
judge  as  to  what  was  necessary  legislation,  and  concluded: 
"  Under  such  a  power  the  constitutional  functions  of  state 
Legislatures  are  impaired,  and  Congress  may  arrogate  those 
powers  of  legislation  which  are  the  peculiar  muniments  of 
state  organization,  and  which  cannot  be  taken  from  the  States 
without  a  radical  and  fatal  change  in  their  relations.  I  will, 
sir,  consent  to  no  centralization  of  power  in  Congress  in 
derogation  of  constitutional  limitations,  nor  will  I  lodge 
there  today  any  grant  of  power  which  may  in  other  times, 
and  under  the  control  of  unprincipled  political  aspirants  or 
demagogues,  be  exercised  in  contravention  of  the  rights  and 
liberties  of  my  countrymen."* 

Messrs.  Hale  and  Davis  were  Republicans,  both  had  voted 
for  the  Freedmen's  Bureau  Bill  and  both  voted  for  the  Civil 
Rights  Bill  at  a  later  date,  and  their  objections  to  the  pro- 
posed Amendment  were,  therefore,  not  partisan. 

Mr.  Woodbridge  made  a  short  speech  in  support  of  the 
resolution,  stating  that  its  purpose  was  to  enable  Congress 
to  secure,  by  legislation,  the  privileges  and  immunities  guar- 
anteed to  every  citizen  under  the  Constitution..'  In  his 
opinion  this  or  a  similar  Amendment  was  both  necessary 
and  proper.^ 

Mr.  Bingham,  the  author  of  the  resolution,  followed  with 
a  somewhat  elaborate  speech  in  defense  of  the  resolution. 
He  denied  the  suggestion  that  had  been  made  that  its  pur- 

*Ibid.,  pp.  1059-1066. 
*  Ibid.,  pp.  1085-1087. 
"Ibid.,  p.  1088. 


Fourteenth  Amendment  Before   Congress.  59 

pose  was  to  mar  the  Constitution.     Its  only  purpose  was,^ 
fe  declared,  to  empower  Congress  to  enforce  the  Bill  of. 
Rights.     He   cited  the   decision  of  the   Federal   Supreme ' 
Court  in  the  case  of  Barron  vs.  the  Mayor  and  City  Council 
of  Baltimore  to  show  that  the  Bill  of  Rights  was  not  ap- 
plicable to  or  binding  upon  the  States.     He  referred  to  a 
speech  by  Mr.  Webster  to  show  that  the  Bill  of  Rights  was, 
however,  to  be  enforced  and  observed  by  the  States,  but 
since  this  had  not  been  done  in  many  States  it  was  essential 
that  an  amendment  should  be  adopted  giving  Congress  the 
power  to  enforce  it.' 

Mr.  Conkling  stated  that  he  had  opposed  the  measure 
while  it  was  before  the  Committee.  Mr.  Hotchkiss  thought 
it  too  conservative,  saying  that  it  left  the  rights  of  the 
citizens  entirely  in  the  hands  of  Congress,  and  that  a  future 
Congress  might,  therefore,  make  laws  which  would  not  be 
.agreeable.  He  wanted  the  Constitution  so  amended  as  to 
deprive  the  States  of  the  power  to  discriminate  against  any 
class  of  citizens,  and  advocated  the  postponement  of  the 
resolution.  Mr.  Conkling,  with  the  quasi  consent  of  Mr. 
Bingham,  moved  the  postponement  of  the  resolution  until 
the  second  Tuesday  of  April,  though  he  voted  for  the  post- 
ponement for  an  entirely  different  reason  than  did  Mr. 
Hotchkiss,  declaring  that  it  could  not  be  objected  to  as  not 
being  sufficiently  radical.  His  motion  was  agreed  to  by  a 
vote  of  no  to  37 — Mr.  Bingham  voting"  in  the  affirmative.''^ 

It  is  rather  difficult  to  determine  the  cause  of  the  post- 
ponement. Mr.  Bingham  may  have  seen  that  it  was  im- 
possible to  secure  its  adoption  at  the  time  in  view  of  the 
hostile  criticism  of  it  by  members  of  his  own  party,  though 
it  was  suggested  that  the  postponement  was  due  to  the  fact 
that  elections  were  soon  to  take  place  in  New  Hampshire 
and  Connecticut,  and  that  it  was  feared  that  the  measure 
might  be  so  radical  as  to  affect  the  interests  of  the  party 
in  power.^    The  resolution  was  not  called  up  in  April,  nor 

-  *  Ibid.,  pp.  1088-1094. 
^  Ibid.,  pp.  1094-1095. 
•N.  Y.  Herald,  March  2,  1866. 


6o  Adoption   of  the  Fourteenth  Amendment. 

indeed  was  it  again  brought  before  the  House  in  the  same 
form. 

Although  the  resolution  was  not  debated  in  the  Senate,  it 
is  worthy  of  note  that  Senator  Stewart,  of  Nevada,  referred 
to  it,  February  28,  saying  that  it  would  change  our  form  of 
government  if  adopted,  and  that  little  legislation  would  be 
left  for  the  States.® 

It  may  be  interesting  at  this  point  to  show  the  attitude 
of  the  Reconstruction  Committee^"  in  regard  to  the  pro- 
posed Amendment.  At^  the  third  meeting,  of  the  Commit- 
tee, January  12,  1866,  the  day  after  Mr.  Trumbull  had 
introduced  the  Freedmen's  Bureau  and  Civil  Rights  Bills, 
Mr.  Bingham  submitted  the  following  resolution  proposing 
an  amendment  to  the  Constitution :  "  The  Congress  shall 
!have  power  to  make  all  laws  necessary  andTproper  to  secure 
to  all  persons  in  every  State  within  this  Union  equal  pro- 
tection in  their  rights  of  life,  liberty  and  property."  At  the 
same  time  he  moved  its  reference  to  a  sub-committee  con- 
sisting of  Messrs.  Fessenden,  Stevens,  Howard,  Conkling, 
and  Bingham.^y  This  sub-committee,  composed  entirely  of 
Republicans,  tof  which  the  various  propositions  in  regard  to 
the  apportionment  of  Representatives  were  also  to  be  re- 
ferred, reported  back  the  resolution  at  the  fifth  meeting  of 
the  Committee,  January  20,  in  the  following  form :  "  Con- 
gress shall  have  power  to  make  all  laws  necessary' and 
proper  to  secure  to  all  citizens  of  the  United  States,  in  every 
'  State,  the  same  political  rights  and  privileges ;  and  to  all 

)ersons  in  every  State  equal  protection  in  the  enjoyrhent  of 
life,  liberty,  and  property."^-     It  will  be  observed  that  this 

fesoliition  was  in  much  stronger  terms  than  the  one  sub- 
litted  by  Mr.  Bingham,  for  this  one  declared  that  all  citi- 

"  Globe,  39th  Cong.,  ist  Sess.,  p.  1082. 

"  The  Reconstruction  Committee  (or  the  Committee  of  Fifteen) 
consisted  of  the  following:  Senators:  Messrs.  Fessenden  (Chair- 
man), Howard,  Harris,  Williams,  Grimes  and  Johnson. 

Representatives:  Messrs.  Stevens  (Chairman  on  part  of  House), 
Conkling,  Boutwell,  Blow,  Bingham,  Morrill,  Washburne,  Grider 
and  Rogers.  Messrs.  Johnson,  Grider  and  Rogers  were  Demo- 
crats. 

"Journal  of  the  Reconstruction  Committee,  p.  7. 

"Ibid.,  p.  9. 


Fourteenth  Amendment  Before   Congress.  6i 

zens  should  be  given  the  same  political  rights  and  privileges, 
hereby  conferring,  or  making  it  possible  for  Congress  to 
eonfer,  the  elective  franchise  and  the  right  to  hold  office 
^^on  the  negroy'  Since  no  record  of  the  proceedings  of  this 
sub-committeq/^was  kept,  we  can  only  conjecture  how  its 
members  voted  on  the  above  resolution.  From  his  sub- 
sequent action,  we  may  feel  safe,  however,  in  saying  that 
Mr.  Conkling  opposed  the  whole  measure,  though  he  never 
.betrayed  or  made  known  the  real  motives  which  actuated 
the  committee.  This  sub-committee  was  doubtless  ap- 
pointed to  formulate  and  consider  partisan  measures,  since 
no  Democrat  was  placed  upon  it,  thus  enabling  the  Radicals 
to  discuss  freely  their  purposes  and  the  best  means  or  meth-^ 
ods  of  obtaining  them  without  any  danger  of  revelation^^^^ 

The  resolution»_^g^j::^orted  back  by  the  sub-committee, 
was_jiot.  considered,  however,  by  the  full  Committee  until 
its  next  meeting,  January  24.  At  this  time  Mr.  Howard 
moved  to  amend  the  resolution  by  inserting  "  and  elective  " 
after  the  word  "  political,"  but  this  seemed  unnecessary,  no 
doubt,  and  was  rejected,  only  two,  Messrs.  Howard  and 
Rogers,  voting  for  it,  the  latter  no  doubt  to  make  it  as 
obnoxious  as  possible. 

Mr.  Boutwell  then  moved  the  following  as  a  substitute 
for  the  first  clause  of  the  resolution :  "  Congress  shall  have 
the  power  to  abolish  any  distinction  in  the  exercise  of  the 
elective  franchise  in  any  State  which  by  law,  regulation,  or 
usage  may  exist  therein."  This  was  also  rejected,  and, 
indeed,  it  is  difficult  to  see  where  his  substitute  would  secure 
more  than  was  secured  by  the  words  "  political  rights  and 
privileges."  The  resolution  was  again  referred  to  a  select 
committee  composed  of  Messrs.  Bingham,  Boutwell,  and 
Rogers.^' 

At  the  next  meeting,  three  days  later,  Mr.  Bingham  re- 
ported the  resolution  in  this  form :  "  Congress  shall  have 
power  to  make  all  laws  which  shall  be  necessary  and  proper 
to  secure  all  persons  in  every  State  full  protection  in  the 
enjoyment  of  life,  liberty,  and  property;  and  to  all  citizens 

"  Ibid.,  p.  12. 


62  Adoption   of  the  Fourteenth  Amendment. 

of  the  United  States,  the  same  immunities  and  also  equal 
political  rights  and  privileges."  Mr,  Johnson  moved  to 
strike  out  the  last  clause,  but  his  motion  was  lost  by  a  vote 
of  4  to  6,  five  being  absent.^*  The  resolution  was  not  con- 
sidered at  the  meeting  January  31,  but  on  February  3,  Mr. 
Bingham  moved,  by  way  of  amendment,  the  following  as  a 
substitute :  "  The  Congress  shall  have  power  to  make  all 
laws  which  shall  be  necessary  and  proper  to  secure  to  citi- 
zens of  each  State  all  privileges  and  immunities  of  citizens 
in  the  several  States  (Art.  IV,  Sec.  2)  ;  and  to  all  persons 
in  the  several  States  equal  protection  in  the  rights  of  life, 
liberty  and  property  (5th  Amendment)."  After  a  discus- 
sion of  the  question,  a  vote  was  taken  on  the  substitute, 
with  the  following  result:  Yeas,  Messrs.  Howard,  Wil- 
liams, Washburne,  Morrill,  Bingham,  Boutwell,  and  Rog- 
ers (7)  ;  Nays,  Messrs.  Fessenden,  Grimes,  Harris,  Stevens, 
Grider  and  Conkling  (6).  Messrs.  Johnson  and  Blow  were 
absent.  The  question  then  recurred  on  agreeing  to  the 
proposed  Amendment  as  amended,  and  on  this  question 
there  were  nine  in  the  affirmative  and  four  in  the  negative, 
the  four  negative  votes  being  cast  by  Messrs.  Harris, 
Grider,  Conkling  and  Rogers,  while  Messrs.  Johnson  and 
Blow  were  not  present.^® 

When  the  Committee  met  again,  a  week  later,  Mr. 
Stevens  moved  that  the  Amendment  or  resolution,  as 
amended  February  3,  be  reported  to  Congress.  The  vote 
on  this  motion  was  the  same  as  that  by  which  the  resolution 
was  adopted  at  the  previous  meeting  with  the  exception  that 
Mr.  Johnson  was  present  and  voted  in  the  negative,  while 
Mr.  Blow  voted  in  the  affirmative,  Mr.  Washburne  being 
absent.^®  It  is  to  be  noted  that  only  two  Republicans, 
Messrs.  Harris  and  Conkling,  both  of  New  York,  were 
opposed  to  the  resolution.  As  we  have  already  seen,  the 
resolution  was  brought  before  the  House  February  13,  but 
was  postponed  on  February  28.    As  to  the  reason  or  rea- 

"  Ibid.,  p.  12. 
« Ibid.,  p.  14. 
"Ibid.,  p.  IS. 


Fourteenth  Amendment  Before   Congress.  63 

sons  for  the  opposition  of  Messrs.  Harris  and  Conkling, 
there  is  no  record. 

It  would  be  assurning  too  much  to  attempt  to  say  why 
so  many  changes  were  made  in  the  resolution,  but  it  seems 
that  one  is  warranted  in  asserting  that  the  resolution  as 
finally  agreed  upon  February  3,  and  reported  to  the  House 
February  13,  was  so  worded  as  not  to  give  Congress  power  ^ 
over  the  elective  franchise,  or  political  rights  in  general,  or 
at  least  not  to  have  it  expressed  so  baldly  as  Messrs.  How- 
ard, Boutwell,  and  others  wanted  it^With  the  exception 
of  the  probably  intended  exclusion  of  political  rights,  the 
various  forms  in  which  the  resolution  was  brought  before 
the  Committee  breathed  the  same  spirit  and  purpose,  the 
only  object  or  purpose  in  making  the  changes  being  to  get 
it  into  the  best  possible  form  to  accomplish  the  desired  end 
or  ends.  It  may  also  be  well  to  note  the  fact  that  on  one 
occasion  Mr.  Bingham  indicated  in  parentheses  the  sources 
of  his  resolution,  since  this  may  aid  in  a  later  consideration 
of  the  Amendment.  It  is  to  be  regretted  that  no  record 
of  the  discussion  which  took  place  in  the  Committee  was 
kept,  for  such  a  record  would  be  very  valuable  in  ascertain- 
ing the  purposes  of  the  various  resolutions,  though  of 
course  the  statements  or  declarations  of  the  members  of  the 
Committee  in  the  debates  which  took  place  in  Congress  will, 
in  part  at  least,  supply  this  want. 

It  is  especially  important  to  note  the  fact  that  there  was 
no  suggestion  of  a  clause  declaring  who  were  citizens  of 
the  United  States,  and  that  two  classes  of  persons  were 
recognized  in  all  the  resolutions.  To  the  one  class,  citi- 
zens, were  to  be  secured  the  privileges  and  immunities, 
whether  specifically  stated  to  include  political  rights  or  not,  , 
of  citizens  of  the  United  States.  It  is  perfectly  evident, 
from  the  limited  debate  which  was  had  on  the  resolution  in 
the  House,  that  the  term  "  citizens  "  was  intended  to  include 
the  freedmen,  they  being  regarded  as  citizens  since  the 
abolition  of  slavery.  To  the  other  class,  designated  as 
"  persons,"  was  to  be  secured  equal  protection  in  the  rights 
of  ^Tffer^liberty,   and   property.     "  Persons "    included,    of 


64  Adoption   of  the  Fourteenth  Amendment. 

course,  all  citizens  as  well  as  those  who  were  not  citizens, 
this  being-  a  broader  term./  This  same  distinction  was  made 
in  the  first  section  of  the  Fourteenth  Amendment  as  finally 
ratified.  ^  \ 

There  seems  to  be  little  doubt,  as  shown  by  its  form  and  n. 
the  debates,  as  to  the  main  purpose  or  eflFect  of  the  resolu- 
tion which  was  postponed  on  the  28th  of  February,  for  it 
declares  in  unmistakable  terms,  "  Congress  shall  have 
power."  Had  it  become  a  part  of  our  Constitution,  even 
a  Supreme  Court,  composed  entirely  of  strict  construction- 
ists of  the  old  regime,  could  hardly  have  found  any  pretext 
for  limiting  the  power  of  Congress  to  enact  any  legislation 
which  it  deemed  "  necessary  and  proper "  to  secure  the 
privileges  and  immunities  of  citizens,  even  to  the  extent  of 
defining  those  privileges.  It  would  have  conferred  upon 
Congress  positive,  and  not  merely  corrective  legislative 
power  as  was  claimed  by  some,  and  while  "  political  rights  " 
was  finally  omitted,  it  seems  possible  that  Congress  could, 
under  the  broad  power  given  by  the  general  terms  used, 
properly  have  determined  the  qualifications  of  electors,  and 
fixed  other  political  rights.  The  legislation  of  the  States 
would  have  been  subject  to  the  will  of  Congress,  for  there 
would  have  been  created  a  centralized  Government,  with 
nearly  all  power  in  the  Legislative  Department. 

It  was  undoubtedly  the  intention  of  Mr.  Bingham  and 
the  members  of  the  Committee  who  supported  him,  to  give 
Congress  power  to  act  when  the  States  had  passed  laws 
which  violated  the  principles  stated  in  the  resolution..' 
From  the  declaration  of  Messrs.  Hale  and  Davis  when  the 
resolution  was  before  the  House,  and  especially  from  the 
context  of  the  resolution  itself,  it  seems  that-we  may  prop- 
erly infer  that  they  intended  to  confer  what  is  still  more 
important,  the  power  to  take  the  initiative  in  legislation  and 
to  pass  laws  which  were  not  in  the  strict  sense  corrective. 
Congress,  and  not  the  Courts,  was  to  judge  whether  or  not 
any  of  the  privileges  or  immunities  were  not  secured  to 

citizens    in   the   several    States.     The   believers    in    States       

Rights  may  well  feel  grateful  that  the  resolution  was  not' 


^'^i-ll-w 


Fourteenth  Amendment  Before   Congress.  6$ 

incorporated  into  the  fundamental  law  of  our  country, 
though  it  may  properly  be  asked  whether  it  really  did  not 
become  a  part  of  it  with  a  mere  change  in  dress,  but  not 
in  meaning.     .• 

It  is  nearly  two  months  after  the  postponement  of  the 
resotution,  February  28,  before  we  hear  of  any  resolution, 
either  in  Congress  or  before  the  Committee,  that  is  at  all 
similar  to  the  one  postponed.  During  this  time  the  Civil 
Rights  Bill  had  been  passed,  had  been  vetoed,  and  had  been 
declared  law,  notwithstanding  the  President's  objections. 
Mr.  Bingham  and  others,  as  we  have  seen,  opposed  that  bill 
as  being  without  warrant  in  the  Constitution,  stating  that 
the  resolution  which  had  been  postponed  was  intended  to 
authorize  such  legislation. 

It  could  not  be  expected  that  a  man  of  the  ability,  deter- 
mination, and  zeal  of  Bingham  would  easily  succumb  to 
defeat.  With  his  measure  apparently  under  the  ban,  he 
set  to  work  with  a  stronger  determination  to  overcome  the 
obstacles  in  his  path.  He  exercised  all  the  ingenuity  of 
his  legal  and  astute  mind  to  put  his  cherished  scheme  into 
such  form  as  to  secure  its  adoption  by  making  it  acceptable 
to  his  colleagues.  He  did  not  make  it  weaker,  as  he  him- 
self stated  at  a  subsequent  time,  but  stronger,  though  it 
was  in  a  form  that  seemed  less  objectionable. 

It  was  not  until  the  meeting  of  the  Committee,  April  21, 
^at  Mr.  Bingham  again  brought  forward  his  resolutions. 
It  was  at  this  meeting  that  the  first  sign  of  the  composite 
character  of  the  Fourteenth  Amendment  was  presented, 
Mr.  Stevens  submitted  a  plan,  which,  he  stated,  had  been 
framed  by  some  one  else,  but  which  received  his  approval. 
This  was  the  plan  of  Robert  Dale  Owen,  as  will  be  shown 
later,  and  consisted  of  five  sections.  Prior  to  this  time  the 
various  propositions  as  to  the  privileges  and  immunities  of 
citizens,  the  basis  of  representation,  the  Confederate  debt, 
etc.,  had  been  submitted  as  separate  and  distinct  Amend- 
ments.    But  now  for  the  first  time  is  revealed  the  intention 

5 


66  Adoptvon   of   the  Fourteenth  Amendment. 

of  the  leaders  to  combine  all  the  propositions   into   one 
Amendment. 

Section  i  of  the  plan  submitted  by  Stevens  read  as 
follows :.  "  No  discrimination  shall  be  made  by  any  State, 
nor  by  the  United  States,  as  to  the  civil  rights  of  persons 
because  of  race,  color,  or  previous  condition  of  servitude 
Mr.  Bingham  at  once  moved  to  amend  this  section  by  add- , 
ing :  "  Nor  shall  any  State  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws,  nor  take  pri- 
vate property  for  public  use  without  compensation."  This 
amendment  was  discussed,  Mr.  Bingham  no  doubt  explain- 
ing its  purpose,  but  it  was  rejected  by  a  vote  of  7  to  5, 
receiving  the  votes  of  Messrs.  Johnson,  Stevens,  Bingham, 
Blow,  and  Rogers.  The  section  as  submitted  by  Mr. 
Stevens  was  then  adopted  with  only  two  votes,  those  of 
Messrs.  Grider  and  Rogers,  in  the  negative.  After  sections 
two,  three  and  four  had  been  adopted,  Mr.  Bingham  moved 
,to  insert  the  following  as  section  five :  "  No._State  shall  make 
..or  enforce  any  law  whichTshall  abridge  the  privileges  and 
immunities  of  citizens  of  the  United  States,  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property  without 
due  process  of  law,  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws."  The  Journal  of  the 
Committee  states  that  this  proposition  was  discussed,  and 
adopted  by  vote  of  10  to  2,  Grider  and  Rogers  again  being 
the  only  members  who  voted  in  the  negative,  while  Messrs. 
Fessenden,  Harris,  and  Conkling  were  absent."  At  the 
meeting  of  April  25,  Mr.  Williams,  who  had  voted  for  the 
section  proposed  by  Mr.  Bingham,  April' 21,  mo ved^tO  Strike 
it  out.  After  some  discussion  this  was  done  by  a  vote  of 
7  to  5,  those  voting  to  retain  it  being  Messrs.  Stevens, 
Morrill,  Bingham,  Rogers,  and  Blow ;  Messrs.  Fessenden, 
Grimes,  and  Washbume  were  either  absent  or  did  not  vote. 
A  motion  was  then  made  to  report  the  resolution  or  plan 
as  amended  to  both  Houses.  This  prevailed  by  a  vote  of 
7  to  6.  On  this  motion  Messrs.  Conkling,  Boutwell,  and 
Blow  voted  with  the  Democrats  against  reporting  it.     Un- 

"Ibid.,  pp.  24-26. 


Fourteenth  Amendment  Before   Congress.  67 

daunted  by  successive  defeats,  Mr.  Bingham  at  once  brought 
forward  his  favorite  scheme,  proposing  it  as  a  separate 
amendment',  but  again,  after  discussion,  it  was  rejected, 
receiving  only  the  votes  of  the  Democrats  in  addition  to 
his  own.  It  is  rather  difficult  to  account  for  the  votes  of  1 
the  Democrats  at  this  time  unless  it  was  for  the  purpose  of  / 
disgusting  the  people  with  so  many  amendments,  or  to 
cause  division  within  the  ranks  of  the  majority,  thereby 
hoping  to  defeat  all  amendments.  A  motion  to  reconsider 
the  order  to  report  the  proposed  plan  to  Congress  was  car- 
ried, Messrs.  Stevens  and  Howard  being  the  only  ones  who 
objected  to  this.^^  The  vote  was  reconsidered  on  account 
of  the  absence  of  the  Chairman,  Mr.  Fessenden,  who  had 
the  varioloid,^®  since  it  might  not  be  considered  very  re- 
spectful to  him  to  report  the  final  plan  of  reconstruction  in 
his  absence.  Who  knows  what  effect  this  delay  had  on  the 
final  form  of  the  Amendment?  The  plan  submitted  by 
Robert  Dale  Owen,  through  Mr.  Stevens,  might  have  be- 
come a  part  of  the  Constitution  instead  of  the  present  Four- 
teenth Amendment,  though  this  is  rather  doubtful. 

At  the  meeting  three  days  later,  Mr.  Bingham  again*! 
brought  his  oft-rejected  measure  before  the  Committee  by 
moving  to  strike  out  section  one  of  the  proposed  plan  and  to 
insert  his  favorite  measure  in  its  place.  It  was  again  dis- 
cussed, and  was  finally  accepted  by  a  vote  of  10  to  3, 
Messrs.  Grimes,  Howard,  and  Morrill  voting  against  it. 
Mr.  Conkling  for  the  first  time  gave  his  assent  to  it. 
Messrs.  Fessenden,  and  Harris  did  not  vote.^**  It  would  be 
both  interesting  and  valuable  if  we  only  knew  what  was 
said  in  regard  to  this  measure,  which  had  so  often  been 
rejected.  Whether  the  Committee  was  won  over  to  Bing- 
ham's view  by  his  arguments  or  persistence,  we  do  not 
know,  but  we  may  imagine  the  satisfaction  which  Mr. 
Bingham  must  have  experienced  at  having  his  measure 
finally  accepted  by  a  large  majority  of  his  colleagues  on  the 

"Ibid.,  pp.  31-32. 

"Atlantic   Monthly,   June,   1875,   P-   660.     See   also   Wilson,   The 
Rise  and  Fall  of  the  Slave  Power  in  America,  III,  p.  650. 
^Journal   of  the  Reconstruction   Committee,  p.   35. 


68  Adoption   of   the  Fourteenth  Amendment. 

Committee.  It  was  this  same  proposition,  with  the  addi- 
tion of  the  clause  defining  citizenship,  which,  in  the  iden- 
tical form  in  which  he  introduced  it  before  the  Committee, 
April  21,  finally  passed  Congress,  June  13,  and  was  even- 
tually ratified  by  the  States  as  section  one  of  the  Fourteenth 
Amendment.  The  whole  plan  or  proposed  Amendment 
was  then  ordered  to  be  reported  to  Congress,  the  vote  being 
strictly  partisan,  12  to  3.^^ 

We  have  thus  traced  the  changes,  in  the  form  of  section 
I,  which  were  made  in  the  Committee  of  Fifteen;  no  rea- 
sons were  given  for  these  various  changes,  but  it  may  be 
asserted,  we  think,  that  the  main  object  in  view  was  the 
same  throughout,  the  only  difficulty  being  so  to  frame  or 
word  the  section  as  to  accomplish  that  object  and  yet  secure 
the  Amendment's  adoption.  The  Radical  leaders  were  as 
aware  as  any  one  of  the  attachment  of  a  great  majority  of 
the  people  to  the  doctrine  of  States  Rights — not  the  right 
of  secession  to  be  sure,  but  the  right  of  the  States  to  regu- 
late their  own  internal  affairs,  including  the  question  of 
suffrage.  The  form  in  which  the  measure  was  first  brought 
before  the  Committee,  and  afterwards  introduced  in  the 
House,  was  too  bald,  and  it  was  seen  that  some  change  was 
necessary.  This  was  the  problem  that  Mr.  Bingham  set 
himself  to  solve,  and  there  seems  little,  if  any,  doubt  but 
that  he  kept  the  same  object  in  view,  and  thought  that  the 
section,  as  finally  reported  and  adopted,  was  as  strong  as 
the  first  one,  and  intended  it  to  accomplish  the  same  pur- 
pose, to  remedy  the  same  evils,  and  to  confer  the  same  pow- 
ers upon  Congress.  His  subsequent  declarations  and  ac- 
tions only  confirm  this  view.^^  As  the  author  of  the 
proposition,  his  testimony  should  be  given  much  weight, 
and  he  was  furthermore  one  of  the  best,  if  not  the  best, 
constitutional  lawyer  in  the  House  of  the  Thirty-ninth  Con- 
gress. A  man  of  strong  conviction,  strongly  attached  to 
his  party,  Mr.  Bingham  was,  however,  guided  in  his  actions 
by  his  convictions,  as  was  illustrated  by  his  vote  on  the  Civil 

^  Ibid.,  p.  38. 

""See  the  fourth  chapter. 


Fourteenth  Amendment  Before   Congress.  69 

Rights  Bill.  Strong  Radical  that  he  was,  nothing  but  a 
sincere  and  deep  conviction  on  his  part  would  have  induced 
him  to  vote  against  a  party  measure. 

The  original  Constitution  was  framed  under  very  difficult 
and  trying  circumstances.     The  Fathers  were  very  careful 
to  word  it  so  as  to  confer  great  power  and  yet  to  have  it  in 
such  a  form  that  the  people  might  not  fully  realize  the 
power  that  was  being  conferred.     We  are  venturing  little^ 
we  believe,  in  saying  that  this  was  apparently  the  probleni; 
that  confronted  the  Radical  leaders  of  the  Thirty-ninth  Con-j  1 
gress,  and  that  their  main  purpose  in  proposing  the  first  sec- 
tion of  the  Amendment  was  to  increase  the  power  of  the 
Federal  Government  very  much,  but  to  do  it  in  such  a  way 
that  the  people  would  not  understand  the  great  changes  in-/ 
tended  to  be  wrought  in  th«  ^fundamental  law  of  the  land.  \ 
Their  failure  to  do  this  is  Jaue  to  the  strained  construction  | 
put  upon  their  work  by^the  Supreme  Court. 

The  authorship  of  the  Fourteenth  Amendment  has  been 
ascribed  to,  or  claimed  by,  several  persons.  In  June, 
1905,  on  the  death  of  Judge  Stephen  Neal,  of  Indiana,  the 
statement  was  made  in  the  leading  papers  of  the  country  that 
he  was  its  author.  The  Indianapolis  News  went  so  far  as  to 
give  a  picture  of  the  room  in  which  he  wrote  it.  The  only 
evidence  to  support  the  claim  made  for  Judge  Neal  is  a  letter 
from  Mr.  Orth,  who  was  a  member  of  Congress  at  the  time, 
to  Judge  Neal  stating  that  he  had  submitted  the  plan  sent  him 
by  the  Judge  to  the  Committee  and  that  it  had  been  adopted 
by  the  Committee  almost  verbatim.  It  was  stated  that  this 
letter  was  lithographed  and  preserved  by  Judge  Neal.  The 
Journal  of  the  Reconstruction  Committee  shows  that  a  plan 
was  submitted  by  Mr.  Stevens,  but  this  plan  consisted  of 
five  sections,  and  not  of  four,  as  Judge  Neal  stated  his  did. 
Furthermore,  there  is  strong  evidence  that  another  man  from 
Indiana,  Robert  Dale  Owen,  was  the  author  of  the  plan  sub- 
mitted by  Mr.  Stevens  on  April  21.  Mr.  Owen,  in  an  article 
in  the  Atlantic  Monthly  for  June,  1875,  under  caption  of  " 
"  Political  Results  from  the  Varioloid,"  gives  a  copy  of  the 
plan  which  he  submitted  to  Mr.  Stevens.     This  copy  is  iden- 


•JO  Adoption   of   the  Fourteenth  Amendment. 

tical,  word  for  word,  with  the  plan  submitted  by  Mr.  Stevens, 
as  given  in  the  Journal  of  the  Committee.  Since  the  Jour- 
nal was  not  published  for  several  years  and  was  kept  by  Mr. 
Fessenden,  the  Chairman  of  the  Committee,  and  by  his  heirs, 
it  would  hardly  have  been  possible  for  Mr.  Owen  to  have 
given  the  proposed  Amendment  had  he  not  really  been  the 
author  of  it.  Mr.  Owen's  plan  was  also  published  in  the 
newspapers  at  the  time,  and  it  was  stated  that  it  was  being 
considered  by  the  Committee.  This  seems  sufficient  to  show 
that  the  claim  for  Judge  Neal's  authorship  of  the  Amend- 
ment falls  to  the  ground,  for  no  other  plan  similar  to  the  one 
submitted  by  Mr.  Stevens  on  April  21  was  brought  before  the 
Committee,  the  other  propositions  being  separate  and  distinct 
Amendments.  No  doubt  Judge  Neal  sent  a  plan  to  Con- 
gressman Orth,  and  Mr.  Orth  may  have  given  it  to  a  mem- 
ber of  the  Committee,  but  it  seems  perfectly  evident  that  it 
was  not  submitted  to  the  Committee  as  a  whole  or  acted 
upon  by  it.  It  may  have  been  very  similar  to  the  plan  agreed 
upon,  thus  leading  Mr.  Orth  to  infer  that  it  was  Judge 
Neal's  plan  that  had  been  accepted. 

Mr.  Owen  never  claimed  that  the  Amendment  as  finally 
adopted  was  his,  though  unquestionably  the  plan  was  his. 
But  for  such  a  plan  we  would  not  have  had  such  a  hetero- 
geneous Amendment  as  the  Fourteenth.  The  same  or  sim- 
ilar sections  might  have  been  proposed  separately,  but  had 
this  been  done,  there  is  little  doubt  but  that  some  of  them  at 
least  would  have  been  rejected  either  by  Congress  or  by  the 
States.  Owen's  plan  had  been  accepted  and  ordered  to  be  re- 
ported to  Congress  without  any  changes  whatever.  And  this 
would  have  been  done  but  for  the  illness  of  Fessenden.  The 
delay  was  fatal  to  Owen's  plan,  scarcely  any  vestige  of  the 
original  form  being  retained.  He  states  in  the  article  to 
which  we  have  referred,  that  Stevens  gave  the  reason  for  the 
changes,  especially  that  in  regard  to  suffrage.  The  action  of 
the  Committee  leaked  out,  and  caucuses  were  held  by  the 
members  from  New  York,  Illinois,  and  Indiana.  Each  of 
these  decided  against  negro  suffrage  in  any  shape. 

The  statement  was  made  several  times  during  the  cam- 


Fourteenth  Amendment  Before   Congress.  71 

paign  of  1866  that  Mr.  Bingham  was  the  author  of  the- 
Amendment.  This  was  true  only  as  regards  the  first  sec-^ 
tion. 

It   is  to  be  especially  noted  that  at  no  time  was  the 
question  of  citizenship  considered  by  the   Committee,  no 
proposition    to    define    citizenship    being    submitted.     This, 
fact  alone,  it  seems,  is  sufficient  to  show  that  the  princi-V 
pal  object  of  the  Amendment  was  not  to  declare. who  werel- 
,^itizens7~f5f  the  "Committee  evidently  regarded  the  freed-  \ 
men  as  citizens,  since  the  purpose  of  the  whole  reconstruc- 
tion measure  was   more   or  less  bound  up   with   that  class. 
This  conclusion,  reached  after  a  careful  examination  of  the 
Journal  of  the  Reconstruction  Committee,  is  reenforced  by 
the  report  of  the  majority  of  that  committee,  for  it  is  stated 
specifically  in  that  report  that  negroes  were  no  longer  slaves, 
but  free  men  and  citizens.     This  being  the  view  of  the  Com- 
mittee, how  can  it  reasonably  be  maintained  that  the  first  sec- 
tion had  for  its  principal  object  the  conferring  of  the  status 
of  citizenship  upon  negroes? 

Before  tracing  the  course  of  the  Amendment  in  the  House 
and  the  Senate,  it  may  be  well  to  consider  the  report  of  the 
Committee,  for  it  should  be  a  valuable  source  in  aiding  us 
to  determine  or  to  discover  the  reasons  given  for  proposing 
the  Amendment.  The  report  was  drawn  up  by  Mr.  Fessen- 
den  and  is  an  able  document.  Senator  Grimes,  a  member  of 
the  Committee,  in  a  letter  to  his  wife  at  the  time,  June  11, 
1866,  stated  that  he  regarded  it  as  the  ablest  paper,  either  as  a 
report  or  in  the  form  of  a  speech,  that  had  been  submitted 
to  Congress  during  his  membership  of  the  Senate.^^ 

After  declaring  that,  instead  of  being  mere  chattels,  the 
former  slaves  had  become  free  men  and  citizens ;  that  they 
had  been  true  and  loyal  to  the  Union,  and  that  it  would  be 
the  basest  ingratitude  to  abandon  them  to  their  former  mas- 
ters without  securing  them  in  their  rights  as  free  men  and 
citizens,  the  report  says :  "  Hence  it  became  important  to  in- 
quire what  could  be  done  to  secure  their  rights,  civil  and 
political.     It  was  evident  to  your  Committee  that  adequate 

^  Salter,  Life  of  Grimes,  p.  299. 


72  Adoption   of  the  Fourteenth  Amendment. 

security  could  only  be  found  in  appropriate  constitutional 
provisions."  ^* 

The  Committee  then  cites  incidents  and  testimony  to  show 
the  condition  of  the  South,  saying  that  the  southern  people 
haughtily  demanded,  as  a  right,  the  privilege  of  participating 
in  the  government  which  they  had  been  striving  to  over- 
throw ;  that  the  leaders  were  prominently  put  forward  to  fill 
the  highest  places,  many  of  them,  including  A.  H.  Stephens, 
the  Vice  President  of  the  Confederacy,  being  elected  to  Con- 
gress in  face  of  the  test-oath ;  that  the  whole  conduct  of  the 
people  displayed  a  feeling  of  hostility  to  the  Federal  Govern- 
ment ;  that  there  was  "  no  general  disposition  to  place  the 
colored  race,  constituting  at  least  two  fifths  of  the  popula- 
tion, upon  terms  even  of  civil  equality  " ;  that  Union  men 
were  detested  and  northern  men  going  South  were  pro- 
scribed ;  and  that  to  have  fought  against  the  Union  was  con- 
sidered a  virtue.  With  such  an  array  of  evidence  as  this, 
the  Committee  was  of  opinion  that  "  Congress  would  not  be 
justified  in  admitting  such  communities  to  a  participation  in 
the  government  of  the  country  without  first  providing  such 
constitutional  or  other  guarantees  as  will  tend  to  secure  the 
civil  rights  of  all  citizens  of  the  republic." 

The  closing  paragraphs  of  the  report  are  worthy  of  being 
quoted  in  full,  for  they  express  briefly,  but  cogently,  the  ob- 
jects which  the  Committee  desired  to  accomplish  by  the 
Amendment. 

"  The  conclusion  of  your  Committee,  therefore  is,  that  the 
so-called  Confederate  States  are  not,  at  present,  entitled  to 
representation  in  the  Congress  of  the  United  States ;  that, 
before  allowing  such  representation,  adequate  security  for 
future  peace  and  safety  should  be  required  ;  that  this  can  only 
be  found  in  such  changes  of  the  original  law  as  shall  deter- 
mine the  civil  rights  of  all  citizens  in  all  parts  of  the  repub- 
lic, shall  place  representation  on  an  equitable  basis,  shall  fix 
a  stigma  upon  treason,  and  protect  the  loyal  people  against 
future  claims  for  the  expenses  incurred  in  support  of  rebel- 


*  Reports  of  Committees  of  House,  39th  Cong.,   ist  Sess.,  Vol 
II,  p.  xiii. 


Fourteenth  Amendment  Before   Congress.  73 

lion  and  for  manumitted  slaves,  together  with  an  express 
grant  of  power  in  Congress  to  enforce  those  provisions.  To 
this  end  they  offer  a  joint  resolution  for  amending  the  Con- 
stitution of  the  United  States,  and  the  two  several  bills  de- 
signed to  carry  the  same  into  effect,  before  referred  to. 

"  Before  closing  this  report,  your  committee  beg  leave  to 
state  that  the  specific  recommendations  submitted  by  them 
are  the  result  of  mutual  concession,  after  a  long  and  careful 
comparison  of  conflicting  opinions.  Upon  a  question  of  such 
magnitude,  infinitely  important  as  it  is  to  the  future  of  the 
republic,  it  was  not  to  be  expected  that  all  should  think  alike. 
Sensible  of  the  imperfections  of  the  scheme,  your  Committee 
submit  it  to  Congress  as  the  best  they  could  agree  upon,  in 
the  hope  that  its  imperfections  may  be  cured,  and  its  defi- 
ciencies supplied,  by  legislative  wisdom ;  and,  that  when 
finally  adopted,  it  may  tend  to  restore  peace  and  harmony  to 
the  whole  country,  and  to  place  our  republican  institutions  on 
a  more  stable  foundation."  ^° 

All  the  Republican  members,  except  Messrs.  Blow  and 
Washburne,  signed  this  report,  which  was  submitted  to  Con- 
gress June  8,  1866.  It  is  important  to  note  that  not  a  word 
was  said  about  the  necessity  or  desirability  of  defining  citi- 
zenship, and  that  it  was  specifically  declared  that  negroes 
were  citizens,  although  the  report  was  submitted  ten  days 
after  Mr.  Howard  had  proposed  to  amend  the  first  section  by 
adding  a  clause  declaring  who  were  citizens,  and  over  a  week 
after  that  amendment  had  been  accepted  by  the  Senate, 
This  seems  to  be  almost  conclusive  evidence  that  the  ques- 
tion of  citizenship  was  not  regarded  as  the  most  important 
object  of  the  first  section  of  the  Amendment. 

The  report  of  the  minority  of  the  Committee,  written  by 
Reverdy  Johnson,  and  signed  by  him  and  the  other  two 
minority  members,  was  made  June  20.  This  report  was 
confined  principally  to  a  legal  discussion  of  the  status  of  the 
Southern  States  and  their  rights  under  the  Constitution. 
This  report  declared  that  no  further  demands  should  be  made 
as  a  condition  precedent  to  the  admission  of  Representatives 

"  Ibid.,  pp.  xvi-xxi. 


74  Adoption   of  the  Fourteenth  Amendment. 

from  those  States,  but  that  there  was  no  objection  to  the 
fourth  section  of  the  proposed  Amendment.  Objection  was 
also  made  to  the  manner  in  which  the  Amendment  was  sub- 
mitted, it  being  maintained  that  the  different  sections  should 
have  been  submitted  as  separate  articles  so  that  the  people 
might  accept  or  reject  such  as  they  saw  fit  without  accept- 
ing or  rejecting  all.^® 

Tl\e  resolution  proposing  an  Amendment  to  the  Constitu- 
tion was  reported  to  both  Houses  of  Congress  April  30,  in 
the  form  finally  agreed  upon  April  28.  Mr.  Stevens  intro- 
duced it  in  the  House  and  Mr.  Fessenden  in  the  Senate,  and 
both  of  them  introduced  at  the  same  time  the  bills  which  were 
to  accompany  it.  One  of  these  bills  was  in  regard  to  ad- 
mitting the  Southern  States  to  a  participation  in  the  govern- 
ment on  adopting  the  proposed  Amendment,  while  the  other 
one  declared  certain  persons  ineligible  to  hold  office  under 
the  Federal  Government. 

The  resolution  was  not  considered,  however,  by  the  House 
until  May  8,  when  Mr.  Stevens  opened  the  debate.  He 
stated  that  it  was  not  all  that  the  Committee  desired,  but 
that  after  a  careful  survey  of  the  whole  ground,  it  was  de- 
cided that  a  more  stringent  proposition  could  not  be  ratified 
by  nineteen  States,  three  fourths  of  the  so-called  loyal  States, 
repudiating  the  idea  that  it  should  be  submitted  to  the  South- 
ern States  or  "  disorganized  communities  "  as  the  Committee 
characterized  them.  The  report  of  the  Committee  also  states 
that  the  proposition  was  not  all  that  they  desired,  and  Mr. 
Grimes,^'^  in  a  letter  to  his  wife,  April  30,  states  the  same 
thing.  These  references,  however,  relate  more  particularly 
to  the  second  section,  for  many  were  in  favor  of  securing 
negro  suffrage. 

In  reference  to  the  first  section,  Mr.  Stevens  stated  that  all 
of  its  provisions  were  asserted  either  in  the  Declaration  of 
Independence  or  in  the  Constitution,  and  added :  "  But  the 
Constitution  limits  only  the  action  of  Congress,  and  is  not 
a  limitation  on  the  States.     This  Amendment  supplies  that 

"  Ibid.,  pp.  1-13. 
■'Salter,  Life  of  Grimes. 


Fourteenth  Amendment  Before   Congress.  75 

defect,  and  allows  Congress  to  correct  the  unjust  legislation 
of  the  States,  so  far  that  the  law  which  operates  upon  one 
man  shall  operate  equally  upon  all."  He  evidently  had  refer- 
ence to  the  Bill  of  Rights,  for  it  is  in  it  that  most  of  the 
privileges  are  enumerated,  and  besides  it  was  not  applicable 
to  the  States.  Under  his  construction,  moreover.  Congress 
would  only  have  power  to  interfere  in  case  of  discrimina- 
tion by  the  States,  but  even  then  Congress  would  judge  as  to 
whether  there  was  discrimination  or  not,  and  could,  there- 
fore, exercise  great  power.  To  the  answer  that  the  same 
things  were  secured  by  the  Civil  Rights  Bill,  Mr.  Stevens 
replied  that  that  was  partly  true,  but  that  a  law  was  re- 
pealable  by  a  majority,  and  that  it  should  be  put  beyond  the 
power  of  Congress  to  repeal  it.^® 

The  debate  was  limited  to  thirty  minutes  to  each  speaker, 
and  it  was  said  to  have  been  the  intention  of  the  leader  to 
call  the  previous  question  the  day  the  resolution  was  intro- 
duced, April  30.  It  was  predicted,  however,  that  had  this 
been  done  the  previous  question  would  not  have  been  sec- 
onded.^" 

Mr.  Finck,  of  Ohio,  followed  Mr.  Stevens  by  declaring 
that  if  the  first  section  was  necessary  to  confer  power  upon 
Congress  to  legislate  about  the  matters  contained  in  it,  the 
Civil  Rights  Bill  was  clearly  unconstitutional.^" 

Mr.  Garfield  denied  the  position  taken  by  Mr.  Finck  that 
those  who  voted  for  this  section  thereby  acknowledged  the 
unconstitutionality  of  the  Civil  Rights  Bill,  maintaining,  as 
did  Mr.  Stevens,  that  it  was  to  put  that  bill  beyond  the  pos- 
sibility of  repeal  by  Congress.^^  His  view  was,  therefore, 
that  the  first  section  merely  incorporated  the  Civil  Rights 
Bill  in  the  Constitution. 

Mr.  Thayer,  of  Pennsylvania,  held  the  same  views  in 
this  regard  as  did  Messrs,  Garfield  and  Stevens,  but  also 
stated  that  it  was  putting  into  the  Constitution  what  was 

*  Globe,  39th  Cong.,  ist  Sess.,  p.  2459. 

"  Ibid.,  p.  2433  and  N.  Y.  Herald,  May  i,  1866. 

"Globe,  39th  Cong.,  ist  Sess.,  p.  2461. 

"  Ibid.,  p.  2462. 


y6  Adoption   of   the  Fourteenth  Amendment. 

already  in  the  Bill  of  Rights  of  every  State  in  the  Union.^' 
Mr.  Thayer  evidently  thought  the  first  section  of  the  Amend- 
ment was  as  effective  and  as  strong  as  the  proposition  sub- 
mitted by  Mr,  Bingham  in  February,  for  in  a  speech  on  the 
Civil  Rights  Bill,  March  2,  he  declared  that  he  would  support 
Mr.  Bingham's  proposition  which  proposed  to  put  the  same 
protection  in  the  Constitution  that  was  to  be  secured  by  the 
bill.  He  practically  made  the  same  statement  in  regard  to 
the  first  section  in  his  speech,  May  8. 

The  view  taken  of  the  first  section  by  the  first  three  speak- 
ers, all  Republicans,  was  likewise  held  by  Mr.  Boyer,  of 
Pennsylvania,  a  Democrat.  He  thought  it  did  more  than 
put  the  Civil  Rights  Bill  into  the  Constitution,  and  that  it  was 
intended  to  secure  ultimately  and  to  some  extent  indirectly, 
the  political  equality  of  the  negroes.  It  was  also  objection- 
able, in  his  opinion,  in  that  it  was  ambiguous  and  admitted 
of  conflicting  construction.^' 

Messrs.  Kelley  and  Schenck  followed  Mr.  Boyer,  but  their 
speeches  were  confined  to  the  general  policy  of  Reconstruc- 
tion, with  especial  reference  to  the  third  section. 

Mr.  Broomall,  of  Pennsylvania,  the  next  day.  May  9,  de- 
clared that  the  object  of  the  first  section  was  "  to  give  power 
to  the  Government  of  the  United  States  to  protect  its  own 
citizens  within  the  States,  within  its  own  jurisdiction."  He 
evidently  thought  that  Congress  would  be  empowered  to  pass 
laws  protecting  citizens  of  the  United  States,  and  in  order  to 
do  this  it  would  be  necessary  for  Congress  to  determine  what 
were  the  privileges  and  immunities  to  be  protected.  He  also 
stated  that  it  was  the  Civil  Rights  Bill  in  another  shape,  but 
that  it  was  desirable  to  have  it  in  the  Constitution  to  make 
assurance  doubly  sure,  since  some  thought  the  bill  unconsti- 
tutional, among  the  number  being  Mr.  Bingham.'* 

Mr.  Broomall  was  followed  by  a  Democrat,  Mr.  Shanklin, 
of  Kentucky,  who  said  that  the  purpose  of  the  first  section 
was  to  destroy  the  rights  which  the  framers  of  the  Constitu- 

"  Ibid.,  p.  2465. 
**  Ibid.,  p.  2467. 
"Ibid.,  p.  2498. 


Fourteenth  Amendment  Before    Congress.  77 

tion  declared  to  belong  exclusively  to  the  States  and  to  vest 
all  power  in  the  General  Government.^" 

Mr,  Raymond,  a  conservative  or  Johnson  Republican,  had 
voted  against  the  Civil  Rights  Bill  because  he  thought  it  un- 
constitutional, but  now  supported  the  Amendment.  He 
stated  that  the  first  section  had  been  first  embodied  in  the 
Amendment  proposed  by  Mr.  Bingham  giving  Congress 
power  to  secure  an  absolute  equality  of  civil  rights  in  every 
State  of  the  Union,  and  that  it  had  then  come  before  Con- 
gress in  the  form  of  the  Civil  Rights  Bill.  He  furthermore 
stated  that  it  was  the  purpose  of  this  section  to  confer  upon 
Congress  the  power  to  pass  the  Civil  Rights  Bill  and  that  he 
would,  therefore,  support  it.^*  It  is  significant  that  Mr. 
Raymond  stated  that  the  object  of  this  section  was  the  same 
as  the  resolution  submitted  by  Mr.  Bingham  in  February, 
especially  since  he  had  opposed  the  Civil  Rights  Bill. 

Mr.  Eldridge,  a  Democrat,  said  that  the  incorporation  of 
the  first  section  in  the  proposed  Amendment  was  an  admis- 
sion that  the  Civil  Rights  Bill  was  unconstitutional,^'''  evi- 
dently thinking  that  its  purpose  was  to  authorize  such  bills 
as  that  one.  We  have  already  noted  the  answer  that  was 
given  by  Messrs.  Garfield  and  Stevens  to  a  similar  statement. 

Mr.  Eliot,  of  Massachusetts,  supported  the  Amendment  be- 
cause he  thought  the  doctrines  contained  in  it  were  right, 
saying  that  if  Congress  did  not  have  the  power  to  pro- 
hibit discriminating  legislation  on  the  part  of  the  States,  such 
power  should  be  distinctly  conferred.  He  had  voted  for  the 
Civil  Rights  Bill,  he  continued,  thinking  that  Congress  had 
ample  power  to  enact  the  provisions  of  that  bill,  but  de- 
clared his  willingness  to  incorporate  into  the  Constitution 
provisions  which  would  remove  the  doubts  entertained  by 
some  on  that  question.^^ 

On  the  third  and  last  day  of  the  debate  in  the  House  on 
the  resolution,  Mr.  Randall,  of  Pennsylvania,  one  of  the 
leading  Democrats  of  the  House,  and  who  afterwards  was 

*■  Ibid.,  p.  2500. 

**  Ibid.,  p.  2502. 

"Ibid.,  p.  2506. 

**Ibid.,  p.  251 1. 


yS  Adoption   of   the  Fourteenth  Amendment. 

several  times  Speaker  of  the  House,  asserted  that  the  first 
section  proposed  "  to  make  an  equality  in  every  respect 
between  the  two  races,  notwithstanding  the  policy  of  dis- 
crimination which  has  heretofore  been  exclusively  exercised 
by  the  States."  He  alsc^  seemed  to  think  that  the  section 
would  confer  power  upon  the  Federal  Government  to  inter- 
fere in  behalf  of  every  character  of  rights  save  suffrage, 
and  that  even  the  privilege  of  determining  who  could  vote 
in  the  States  would  soon  be  assumed.^® 

Mr,  Rogers,  a  minority  member  of  the  Reconstruction 
Committee,  closed  the  debate  for  the  Democrats,  and  his 
speech  is  of  sufficient  importance  to  justify  a  somewhat 
extended  quotation.     His  speech  was,  in  part,  as  follows: 

"  Now,  sir,  I  have  examined  these  propositions  with  some 
minuteness,  and  I  have  come  to  the  conclusion  different  to 
what  some  others  have  come,  that  the  first  section  of  this 
programme  of  disunion  is  the  most  dangerous  to  liberty. 
It  saps  the  foundation  of  the  Government;  it  destroys  the 
elementary  principles  of  the  States ;  it  consolidates  every- 
thing into  one  imperial  despotism ;  it  annihilates  all  the 
rights  which  lie  at  the  foundation  of  the  Union  of  the 
States,  and  which  have  characterized  this  Government  and 
made  it  prosperous  and  great  during  the  long  period  of  its 
existence." 

Mr.  Rogers  characterized  the  proposal  as  an  "  attempt  to 
embody  in  the  Constitution  of  the  United  States  that  out- 
rageous and  miserable  Civil  Rights  Bill  "  which  was  vetoed 
because  it  was  an  attempt  to  consolidate  the  power  of  the 
States.  He  also  declared  that  the  term  "  privileges  and 
immunities  "  embraced  every  right  which  anyone  had  under 
the  laws  of  the  country,  including  the  right  to  vote,  to 
marry,  to  contract,  to  be  a  juror  and  to  hold  office;  and 
added :  "  I  hold  if  that  ever  becomes  a  part  of  the  funda- 
mental law  of  the  land  it  will  prevent  any  State  from  refus- 
ing to  allow  anything  to  anybody  embraced  under  this  term 
of  privileges  and  immunities."  He  stated  that  if  a  negro 
was  refused  the  right  to  be  a  juror,  that  the  Federal  Gov- 

"•Ibid.,  p.  2530. 


Fourteenth  Amendment  Before   Congress.  79 

emment  would  step  in  and  interfere.*"  This  last  statement 
has  been  fulfilled. 

Mr.  Farnsworth,  of  Illinois,  said  that  all  of  the  first  sec- 
tion except  the  last  clause  was  already  in  the  Constitution. 
That  was  true,  but  he  evidently  overlooked  the  fact  that  the 
Fifth  Amendment  was  not  binding  upon  the  States,  for  he 
regarded  the  first  two  clauses  of  the  section  as  mere 
surplusage.*^ 

Mr.  Bingham,  the  author  of  the  first  section,  said  that 
the  necessity  of  that  section  was  one  of  the  lessons  taught 
by  the  war,  and  that  there  had  been  a  want  hitherto  in  the 
Constitution  which  it  would  supply.  That  want  he  declared 
to  be  "  The  power  in  the  people,  the  whole  people  of  the 
United  States,  by  express  authority  of  the  Constitution  to 
do  that  by  congressional  enactment  which  hitherto  they  have 
not  had  the  power  to  do,  and  have  never  even  attempted  to 
do;  that  is,  to  protect  by  national  law  the  privileges  and 
immunities  of  all  the  citizens  of  the  Republic  and  the  inborn 
rights  of  every  person  within  its  jurisdiction  whenever  the 
same  shall  be  abridged  or  denied  by  the  unconstitutional 
acts  of  any  State." 

He  denied  that  this  section  conferred  power  upon  Con- 
gress to  regulate  suffrage  in  the  several  States,  and  in 
answer  to  a  suggestion  made  elsewhere  that  if  it  did  not 
confer  this  power  the  need  of  it  was  not  perceived,  declared : 
"  To  all  such  I  beg  leave  again  to  say,  that  many  instances 
of  state  injustice  and  oppression  have  already  occurred  in 
the  state  legislation  of  this  Union,  of  flagrant  violations  of 
the  guaranteed  privileges  of  citizens  of  the  United  States, 
for  which  the  National  Government  furnished  and  could 
furnish  by  law  no  remedy  whatever.  Contrary  to  the 
express  letter  of  your  Constitution,  '  cruel  and  unusual 
punishments '  have  been  inflicted  under  state  laws  within 
this  Union  upon  citizens,  not  only  for  crimes  committed, 
but  for  sacred  duty  done,  for  which  and  against  which  the 
Government  of  the  United  States  had  provided  no  remedy 

"  Ibid.,  p.  2538. 
**Ibid.,  p.  2539. 


8o  Adoption  of  the  Fourteenth  Amendment. 

and  could  provide  none."  This  quotation  makes  it  per- 
fectly evident  that  he  intended  to  confer  power  upon  the 
Federal  Government,  by  the  first  section  of  the  Amend- 
ment, to  enforce  the  Federal  Bill  of  Rights  in  the  States, 
for  the  citation  he  made  from  the  Constitution  is  to  be 
found  in  the  Eighth  Amendment.  If  the  section  under 
consideration  had  this  effect  as  to  that  Amendment,  it  nec- 
essarily follows  that  it  would  apply  equally  to  the  other 
seven  Amendments.  A  comparison  of  these  statements 
with  those  he  made  in  February  while  his  original  resolution 
was  before  the  House  clearly  demonstrates  that  the  two 
resolutions,  in  his  mind  at  least,  were  identical,  and  that 
the  first  section  of  the  Amendment  conferred  the  same  pow- 
ers that  he  intended  to  confer  by  the  original  resolution. 

It  is  to  be  inferred  from  what  he  said  at  this  time  that 
Congress  was  only  to  interfere  in  cases  where  some  of  the 
privileges  or  immunities  were  abridged  or  denied  by  the 
unconstitutional  acts  of  the  States.  This  seems  to  be  con- 
firmed by  another  statement  made  in  the  same  speech,  where 
he  declared  that  the  "  great  want  of  the  citizen  and 
stranger,  protection  by  national  law  from  unconstitutional 
state  enactments,"  *2  would  be  supplied  by  this  section. 
While  these  statements  might  seem  to  justify  the  conclu- 
sion that  Congress  was  not  empowered  to  act  until  the 
States  had  actually  passed  discriminating  or  unconstitu- 
tional laws,  Mr.  Bingham  evidently  did  not  intend  to  leave 
that  impression,  for  he  stated  specifically  at  this  time  that 
no  State  ever  had  the  power,  by  law  or  otherwise,  to  deny 
to  any  freeman  the  equal  protection  of  the  laws  or  to 
abridge  the  privilege  of  any  citizen,  though  stating  that  this 
had  been  done,  and  that  without  remedy.  It  can  be  in- 
ferred properly,  we  think,  that  he  meant  by  this  that  no 
State  could  abridge,  or  could  allow  to  be  abridged  or 
denied,  any  of  the  privileges  of  citizens.  Besides,  he  had 
stated  on  a  former  occasion,  while  the  resolution  was  still 
before  the  Committee,  that  the  Constitution  declared  that 
no  person  should  be  deprived  of  life  without  due  process 

**Ibid.,  pp.  2542-43. 


Fourteenth  Amendment  Before   Congress.  8i 

of  law,  but  that  notwithstanding  this  life  had  never  "  been 
protected,  and  is  not  now  protected,  in  any  State  of  this 
Union  by  the  statute  law  of  the  United  States."  *^  This 
clearly  shows  that  he  intended  that  Congress  should  have 
the  power  to  pass  laws  declaring  what  rights  should  be 
secured  to  the  citizens.  Anyway,  it  matters  little  whether 
Congress  was  to  exercise  the  power  before  the  States  had 
denied  those  privileges,  either  by  acts  of  omission  or  of 
commission,  since  Congress  was  unquestionably  empowered 
to  define  or  declare,  by  law,  what  rights  and  privileges 
should  be  secured  to  all  citizens. 

Mr.  Stevens  closed  the  debate  with  a  short  speech, 
after  which  the  previous  question  was  ordered.  The  vote 
then  was  taken  immediately  after  Mr.  Bingham  had  spoken, 
J  and  his  position  must  have  been  understood  by  all  the 
members  present.  His  statement  of  the  need  and  purpose 
of  the  section  must,  therefore,  have  been  acquiesced  in  by 
those  who  supported  it,  especially  since  Mr.  Bingham  was 
the  author  of  it  as  well  as  a  member  of  the  Committee 
which  ordered  it  to  be  reported,  and  thus  could  speak  with 
authority.  Furthermore,  his  statements  do  not  at  all  con- 
tradict the  position  taken  by  Mr.  Rogers  and  others  of  the 
minority,  but  rather  strengthen  it.  In  fact,  there  seems  to 
be  little,  if  any,  difference  between  the  interpretation  put 
upon  the  first  section  by  the  majority  and  by  the  minority, 
for  nearly  all  said  that  it  was  but  an  incorporation  of  the 
Civil  Rights  Bill.  It  might  be  expected  that  the  minority 
would  ascribe  certain  motives  to  it  on  partisan  grounds, 
but  this  does  not  seem  to  have  been  the  case  in  regard  to 
this  particular  section,  for  there  was  no  controversy  or  mis- 
understanding as  to  its  purpose  and  meaning.  The  minor- 
ity opposed  it  because  they  objected  to  increasing  the  power 
of  the  Federal  Government,  while  the  majority  supported 
it  for  this  very  reason. 

It  may  be  said,  in  conclusion,  that  the  House  believedX 
and    intended   that   the   purpose    and    effect   of    the   first  ( 

*'Ibid.,  p.  429.  / 

6 


82  Adoption   of   the  Fourteenth  Amendment. 

h 

section  of  the  Fourteenth  Amendment  would  be  to  give 

Congress  the  power  to  enact  affirmative  legislation,  espe- 
cially where  state  laws  were  unequal,  and  that  it  would  also 
make  the  first  eight  Amendments  binding  upon  the  States 
as  well  as  upon  the  Federal  Government,  Congress  being 
empowered  to  see  that  they  were  enforced  in  the  States.  It 
also  seems  proper  to  say  that  Congress  would  be  authorized 
to  pass  any  law  which  it  might  declare  "  appropriate  and 
necessary  "  to  secure  to  citizens  their  privileges  and  immu- 

j  nities,  together  with  the  power  to  declare  what  were  those 

I  privileges  and  immunities. 

Many  Republicans  wanted  the  previous  question  voted 
down  to  give  an  opportunity  for  amendments,  though 
amendment  was  only  desired  as  to  the  third  section,  the  first 
section  being  acceptable  to  all  who  advocated  the  Amend- 
ment. By  a  rather  strange  combination  of  the  extremists 
of  both  sides,  the  previous  question  was  ordered  by  a  vote 
of  84  to  79,  thus  preventing  all  amendments.**  The  Demo- 
crats who  voted  with  the  extreme  Radicals  to  prevent  an 
opportunity  of  amending  the  resolution  did  so  no  doubt  to 
make  the  Amendment  as  objectionable  as  possible  in  order 
to  secure  its  defeat  either  by  the  Senate  or  by  the  States, 
but  their  party  tactics  were  of  no  avail. 

The  proposed  Amendment  was  then  passed,   May   10, 

C1866,  in  the  form  in  which  it  was  reported,  by  a  vote  of 
128  to  37,  only  five  Republicans,  all  from  the  border  States 
ftf  Maryland,  West  Virginia,  and  Kentucky,  voting  in  the 
negative.  The  announcement  of  the  vote  was  received 
with  applause  on  the  floor  and  in  the  galleries.  Mr.  Ray- 
mond's vote  for  the  measure  was  also  applauded.*^  Of  the 
Republicans  who  voted  against  the  Amendment,  none  had 

**A  newspaper  reporter,  describing  the  vote  on  ordering  the 
previous  question,  said:  "  Thad,  confident  of  his  strength,  sat  in 
his  seat,  grinning  sardonically  and  chatting  with  the  crowd  of  his 
admiring  friends  gathered  about  him."     Herald,   May   11,   1866. 

"Globe,  39th  Cong.,  1st  Sess.,  p.  2545.  A  reporter  stated  that 
Mr.  Eldridge  wanted  the  speaker  to  stop  the  applause,  but  that 
"Jack  Rogers  hoped  the  colored  brethren  and  sisters  in  the  gal- 
leries would  be  allowed  to  wave  their  pocket  handkerchiefs." 
Herald,  May  11. 


Fourteenth  Amendment  Before   Congress.  83 

expressed  any  objection  to  the  first  section  except  Mr. 
Phelps,  of  Maryland,  though  he  and  Mr.  Smith,  of  Ken- 
tucky, were  the  only  ones  who  spoke  on  the  question. 

We  have  already  observed  that  Messrs.  Bingham  and 
Raymond,  who  had  opposed  the  Civil  Rights  Bill,  supported 
the  Amendment,  and  it  is  probably  worth  while  to  point 
out  that  Messrs.  Hale,  Davis,  and  Conkling,  all  of  New 
York,  supported  the  Amendment,  though  they  had  opposed 
it  in  another  form  at  an  earlier  date.  Their  apparent  in- 
consistency may  be  explained  by  saying  that  the  first  section 
did  not  attempt  to  confer  as  much  power  as  did  the  resolu- 
tion which  they  opposed,  but  this  explanation  is  very  much 
weakened  when  it  is  recalled  that  they  must  have  heard 
what  Messrs.  Rogers  and  Bingham  had  said  in  regard  to 
it,  and  without  any  statement  whatever  as  to  what  they 
understood  it  to  mean,  they  voted  for  it.  Mr.  Conkling 
also  must  have  been  aware  of  what  Mr.  Bingham  intended 
to  accomplish  by  it,  for  he  was  present  in  the  Committee 
when  it  was  submitted,  and  had  always  opposed  it  there. 
He  had  stated  his  objections  to  such  a  plan  early  in  the 
session,  declaring  that  it  would  trench  upon  the  principle 
of  local  sovereignty  by  denying  "  to  the  people  of  the  sev- 
jeral  States  the  right  to  regulate  their  own  afifairs  in  their 
Qwn  way."**  The  plan  of  which  he  was  speaking  included 
both  civil  and  political  rights,  but  the  principle  was  the 
same. 

Probably  one  of  the  most  important  things  to  be  noted,; 
however,  is  the  fact  that  the  Amendment,  in  the  form  in  I 
which  it  passed  the  House  May  10,  1866,  contained  no] 
clause  defining  citizenship.  If  the  main  purpose  of  the 
first  section  was  to  declare  who  were  citizens,  why  was  it 
not  added  in  the  House?  The  question  of  citizenship  does 
not  appear  to  have  been  raised  during  the  three  days'  debate 
on  the  Amendment,  it  evidently  being  taken  for  granted 
that  negroes  were  citizens.  In  fact,  the  Civil  Rights  Bill 
had  declared  them  citizens,  and  that  part  of  the  bill  seems 
to  have  been  acquiesced  in,  for  it  was  apparently  recog- 

"  Ibid.,  p.  358. 


84  Adoption   of   the  Fourteenth  Amendment. 

nized  by  all  that  the  negroes  were  henceforth  to  be  citi- 
zens of  the  United  States.  It  cannot,  then,  be  maintained, 
so  far  as  the  House  is  concerned,  that  the  question  of  citi- 
zenship was  at  all  involved. 

The  joint  resolution  proposing  the  Fourteenth  Amend- 
ment had  been  introduced  in  the  Senate  April  30,  the  day 
on  which  it  was  brought  before  the  House,  but  no  action 
was  taken  in  regard  to  it  until  nearly  two  weeks  after  its 
passage  by  the  House.  Mr.  Fessenden,  the  Chairman  of 
the  Reconstruction  Committee,  and  consequently  the  one  to 
take  charge  of  it  in  the  Senate,  was  too  ill  to  open  the 
debate.  This  duty  was  assigned  to  his  colleague  on  the 
Committee,  Senator  Howard,  of  Michigan,  who  opened  the 
debate  May  23. 

In  beginning  his  speech,  Mr.  Howard  said  that  he  pro- 
posed to  present,  in  a  succinct  form,  the  views  and  motives 
which  influenced  the  Committee  to  propose  the  Amend- 
ment, so  far  as  he  understood  those  views  and  motives. 
The  Journal  of  the  Committee  shows  that  he  was  generally 
present  and  took  part  in  the  proceedings  and  he  was,  there- 
fore, fully  qualified  to  speak  for  the  Committee.  He  was 
furthermore  selected  to  open  the  debate  on  the  resolution 
and  to  take  charge  of  it  in  the  Senate.  The  views  which 
he  expressed,  in  view  of  his  own  statement,  as  well  as  his 
position,  must  be  regarded  as  those  of  the  Committee,  un- 
less they  were  contradicted  by  some  of  the  other  members 
of  the  Committee.  He  spoke  at  considerable  length  as  to 
the  purpose  and  effect  of  the  first  section,  saying  that  it 
was  a  general  prohibition  upon  the  "  States,  as  such,  from 
abridging  the  privileges  and  immunities  of  the  citizens  of 
the  United  States."  The  privileges  and  immunities  spoken 
of,  he  declared,  were  those  belonging  to  "  citizens  of  the 
United  States,  as  such,  and  as  distinguished  from  all  other 
persons  not  citizens  of  the  United  States."  These  privi- 
leges and  immunities  had  never  been  defined,  and  it  was 
not  his  purpose,  he  said,  to  undertake  to  define  all  of  them, 
though  he  regarded  those  spoken  of  in  section  two  of  the 
Fourth  Article  of  the  Constitution  as  being  among  them. 


Fourteenth  Amendment  Before    Congress.  85 

He  quoted  the  decision  of  Justice  Washington  in  Corfield 
vs.  Coryell  (4  Washington  Circuit  Ct.  Repts.,  p.  380)  to 
show  what  some  of  those  privileges  were.  The  Court  did 
not,  in  that  decision,  undertake  to  enumerate  all  the  privi- 
leges and  immunities  secured  by  that  section,  but  said  that 
they  might  be  included  under  the  following  general  heads : 
"  protection  by  the  Government,  the  enjoyment  of  life  and 
liberty,  with  the  right  to  acquire  and  possess  property  of 
every  kind  and  to  pursue  and  obtain  happiness  and  safety, 
subject  nevertheless  to  such  restraints  as  the  Government 
may  justly  prescribe  for  the  general  good  of. the  whole. 
The  right  of  a  citizen  of  one  State  to  pass  through  or  to 
reside  in  any  other  State,  for  purposes  of  trade,  agriculture, 
professional  pursuits,  and  otherwise ;  to  claim  the  benefit 
of  the  writ  of  habeas  corpus;  to  institute  and  maintain 
actions  of  any  kind  in  the  Courts  of  the  State;  to  take, 
hold,  and  dispose  of  property,  either  real  or  personal,  and 
an  exemption  from  higher  taxes  or  impositions  than  are 
paid  by  other  citizens  of  the  State." 

After  quoting  this  decision  at  some  length,  Mr.  Howard 
said :  "  Such  is  the  character  of  the  privileges  and  immuni- 
ties spoken  of  in  the  second  section  of  the  Fourth  Article 
of  the  Constitution.  To  these  privileges  and  immunities, 
whatever  they  may  be,  for  they  are  not  and  cannot  be  fully 
defined  in  their  entire  extent  and  precise  nature — to  these 
should  be  added  the  personal  rights  guaranteed  and  secured 
by  the  first  eight  Amendments  to  the  Constitution."  He 
then  gave  a  full  statement  of  the  rights  secured  by  those 
Amendments,  among  which  were  the  freedom  of  speech  and 
of  the  press,  etc.*"' 

*'  His  statement  of  those  rights  was  as  follows :  "  Such  as  the 
freedom  of  speech  and  of  the  press,  the  right  of  the  people  peace- 
ably to  assemble  and  petition  the  Government  for  a  redress  of 
grievances  a  right  appertaining  to  each  and  all  the  people;  a  right 
to  keep  and  to  bear  arms ;  the  right  to  be  exempted  from  the 
quartering  of  soldiers  in  a  house  without  the  consent  of  the 
owner;  the  right  to  be  exempt  from  unreasonable  searches  and 
seizures,  and  from  any  search  or  seizure  except  by  virtue  of  a 
warrant  issued  upon  a  formal  oath  or  affidavit;  the  right  of  an 
accused  person  to  be  informed  of  the  nature  of  the  accusation 
against  him,  and  his  right  to  be  tried  by  an  impartial  jury  of  the 


/ 


86  Adoption   of  the  Fourteenth  Amendment. 

These  privileges,  immunities  and  rights,  guaranteed  by  the 
second  section  of  Article  Four  and  by  the  first  eight  Amend- 
ments, had  been,  he  declared,  by  judicial  construction, 
'  secured  to  the  citizen  solely  as  a  citizen  of  the  United  States 
and  as  a  party  in  the  Federal  Courts,  and  added :  "  They 
^  (the  provisions  of  the  Constitution  referred  to)  do  not 
operate  in  the  slightest  degree  as  a  restraint  or  prohibition 
]  upon  state  legislation.  States  are  not  affected  by  them,  and 
,'  it  has  been  repeatedly  held  that  the  restriction  contained  in 
'  the  Constitution  against  the  taking  of  private  property  for 
public  use  without  just  compensation  is  not  a  restriction  upon 
state  legislation,  but  applies  only  to  the  legislation  of  Con- 
gress." 

Congress  did  not  have  the  power  to  enforce  these  guar- 
antees, he  declared,  since  they  were  not  powers  conferred 
upon  Congress  by  the  Constitution,  nor  embraced  by  that 
sweeping  clause  which  authorized  Congress  to  pass  all  laws 
necessary  and  proper  for  carrying  out  the  powers  granted  by 
the  Constitution.  They  were,  in  his  opinion,  merely  a  Bill 
of  Rights  in  the  Constitution  without  power  on  the  part  of 
Congress  to  enforce  them.  The  States  were  not  restrained 
from  violating  those  guarantees,  he  continued,  except  by 
their  own  Constitutions,  which  might  be  altered  at  any 
.  time.  "  The  great  object  of  the  first  section  of  this  Amend- 
ment is,  therefore,  to  restrain  the  power  of  the  States  and 
compel  them  at  all  times  to  respect  these  great  fundamental 
guarantees." 

Mr.  Howard  stated,  however,  that  the  first  section  of  itself 
did  not  confer  any  power  upon  Congress  to  carry  out  those 
guarantees,  but  that  this  power  was  conferred  by  the  fifth 
section,  of  which  he  said :  "  Here  is  a  direct  affirmative  dele- 
gation of  power  to  Congress  to  carry  out  all  of  these  guar- 
antees, a  power  not  found  in  the  Constitution."  According 
to  his  opinion  suffrage  was  not  one  of  the  privileges  secured 
by  the  Amendment. 

The  clause  of  the  first  section  of  which  Mr.  Howard  had 


vicinage;  and  also  the  right  to  be  secure  against  excessive  bail  and 
against  cruel  and  unusual  punishments."     Globe,  p.   2765. 


Fourteenth  Amendment  Before   Congress.  87 

been  speaking  applied  merely  to  citizens  of  the  United  States, 
and  did  not  secure  any  of  those  privileges  to  aliens  and  other 
persons.  The  last  two  clauses  of  section  one  were  applicable 
to  all  persons,  and  prohibited  the  States  from  depriving  any 
one  of  life,  liberty,  or  property  without  due  process  of  law,  or 
from  denying  any  one  the  equal  protection  of  the  law. 
These  clauses,  declared  Mr.  Howard,  abolished  all  class  legis- 
lation in  the  States  and  subjected  all  to  the  same  laws  and  to 
the  same  punishments.  He  evidently  regarded  the  negroes 
as  citizens,  for  at  this  point  he  stated  that  they  were  pro- 
tected by  the  Amendment  in  their  fundamental  rights  as 
citizens  to  the  same  extent  as  white  men.  In  concluding 
his  remarks  on  the  first  section,  Mr.  Howard  stated  that  if 
the  Amendment  were  adopted  by  the  States,  the  first  section 
taken  in  connection  with  the  fifth  would  prevent  the  States 
from  trenching  upon  the  fundamental  privileges  which  per- 
tained to  citizens  of  the  United  States.*^ 

The  declaration  of  Mr.  Howard  in  explaining  the  first  sec- 
tion of  the  Fourteenth  Amendment  could  hardly  have  been 
stated  more  clearly  and  squarely,  and  there  could  be  no  doubt, 
it  seems,  as  to  its  object  and  purpose.  No  one  could  reason- 
ably say,  after  reading  or  hearing  his  speech,  that  he  had 
been  misled  as  to  the  purpose  and  effect  of  the  Amendment. 
This  had  been  said  in  regard  to  the  Thirteenth  Amendment, 
and,  with  some  justification,  it  must  be  admitted,  but  in  re- 
gard to  the  Fourteenth  Amendment  the  same  cannot  be  said, 
for  its  purpose  was  clearly  and  fairly  set  forth  by  Mr. 
Howard  and  others.  His  interpretation  of  the  Amendment 
was  not  questioned  by  any  one,  and  in  view  of  his  statement 
made  at  the  beginning  of  his  speech,  this  interpretation  must 
be  accepted  as  that  of  the  Committee,  since  no  member  of  the 
Committee  gave  a  different  interpretation  or  questioned  his 
statements  in  any  particular.  Nor  was  his  position  denied 
by  any  of  the  minority,  for  in  fact  the  minority  opposed  the 
Amendment  for  the  very  reasons  which  he  gave  in  support 
of  it,  this  especially  being  the  objection  given  by  Mr.  Rogers 
in  the  House. 

"Ibid.,  pp.  2765-66. 


88  Adoption   of  the  Fourteenth  Amendment. 

-\ 

Mr.  Wade,  on  the  same  day  that  Mr.  Howard  spoke, 
moved  a  substitute  for  the  entire  resolution,  but  the  only 
change  in  the  first  section  was  to  substitute  "  persons  bom 
in  the  United  States  or  naturalized  by  the  laws  thereof  " 
instead  of  "  citizens  of  the  United  States."  " 

This  substitute  was  proposed  on  account  of  uncertainty 
which  was  involved  in  the  term  "  citizens."  Mr.  Wade  him- 
self, so  he  says,  had  no  doubt  about  who  were  compre- 
hended by  the  term  "  citizens,"  but  since  the  Courts  had 
thrown  some  doubt  over  the  question,  he  thought  all  doubt 
should  be  removed.  His  substitute  would  thus  make  the 
privileges  and  immunities  applicable  to  negroes  whether 
they  were  held  to  be  citizens  or  not.  In  this  respect  he  re- 
garded his  substitute  as  an  improvement  over  that  of  the 
Committee,  and  this  was  true  in  so  far  that  no  doubt  could 
be  entertained  as  to  the  persons  who  were  to  be  protected  in 
their  rights  and  privileges.  Mr.  Wade  was  not  the  first  to 
observe  that  the  very  people  whom  they  intended  to  reach  by 
the  resolution  might  be  excluded  on  the  ground  that  they 
were  not  citizens,  since  the  Civil  Rights  Bill  might  not  be 
held  to  be  constitutional,  for  Mr.  Stewart  had,  on  May  14, 
1866,  proposed  an  amendment  to  the  resolution  defining  what 
was  meant  by  the  term  "  citizens  "  as  used  in  the  first  sec- 
tion.'*" 

Mr.  Howard  -evidently  saw  the  weight  of  the  observa- 
tions of  Mr.  Wade  and  of  the  suggestion  in  the  amend- 
ment of  Mr.  Stewart,  for  when  the  resolution  was  before 
the  Senate,  May  29,  he  mpved^jDy  way  of  amendment  to 
section  one,  that  "  all  persons  born  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof,  are  citi- 
zens of  the  United  States  and  of  the  "State's  wherein  they 
reside,"  ^^  This  was  to  form  the  first  part  of  section  one, 
and  with  that  added,  no  further  changes  were  made  as  re- 
gards that  section,  for  with  this  exception,  it  stands  in  our 
Constitution  today  in  the  form  which  was  given  it  by  Mr. 
Bingham    in   the    Committee.      This    amendment   of    Mr. 

"  Ibid.,  p.  2768. 
"Ibid.,  p.  2560. 
"  Ibid.,  p.  2869. 


Fourteenth  Amendment  Before   Congress.  89 

Howard  was  important  in  this  respect,  not  that  it  conferred 
any  power  upon  Congress,  but  that  it  put  beyond  doubt  and 
cavil  in  the  original  law,  who  were  citizens  of  the  United 
Sfates.  The  first  clause  of  section  one  thus  malces  federal 
citizenship  primary,  since  residence  is  all  that  is  necessary 
to  state  citizenship  if  one  be  a  citizen  of  the  United  States. 
When  that  clause  became  a  part  of  the  fundamental  law,  the 
States  could  no  longer  determine  its  citizenship  and  thus  the 
citizenship  of  the  United  States  as  in  former  years. 

Mr.  Doolittle  seemed  to  fear  that  Indians  born  in  the 
United  States  would  become  citizens  by  this  Amendment, 
and  so  amended  it  by  saying  "  excluding  Indians  not 
taxed."°^  Mr.  Howard  replied  that  this  was  unnecessary 
since  Indians,  who  maintained  tribal  relations,  were  and 
always  had  been  regarded  as  quasi  foreign  nations,  thus  not 
being  embraced  by  the  Amendment.  Mr.  Doolittle  said  that 
citizenship,  if  conferred,  would  carry  with  it  all  the  privi- 
leges, rights,  duties,  and  immunities  which  it  was  the  object 
of  this  Amendment  to  extend.  While  recognizing  the  im- 
portance to  be  attached  to  the  clause  defining  "  citizens," 
he  did  not  lose  sight  of  the  main  object  of  the  Amendment. 
Mr.  Trumbull  claimed  that  "  subject  to  the  jurisdiction  "  of 
the  United  States  meant  subject  to  the  complete  jurisdiction, 
thus  not  including  Indians.''*  Mr.  Howard  said  that  Mr. 
Doolittle's  amendment,  if  accepted,  would  result  in  an  actual 
naturalization  whenever  any  State  saw  fit  to  tax  an  Indian, 
and  that  this  objection  was  sufficient  to  secure  its  rejection. 
He  was  not  prepared,  he  declared,  to  have  the  Indians  be- 
come his  fellow-citizens,  to  vote  with  him,  and  to  hold  lands 
and  deal  in  every  other  way  that  a  citizen  of  the  United 
States  had  a  right  to  do.''^  It  would  seem  from  this  state- 
ment that  Mr.  Howard  regarded  suffrage  as  a  privilege  of 
citizenship,  though  he  had  stated  in  his  opening  speech  that 
it  was  not. 

Senator  Johnson,  of  Maryland,  approved  both  Mr.  Doo- 
little's amendment  to  exclude  Indians  and  the  clause  defin- 

"  Ibid.,  p.  2890. 
"  Ibid.,  p.  2893. 
"Ibid.,  p.  2895. 


90  Adoption   of   the  Fourteenth  Amendment. 

ing  citizenship.  He  thought  that  the  latter  was  a  wise  and 
necessary  provision,  since,  according  to  commentators  and 
the  decisions  of  the  Courts,  a  citizen  of  a  State  became  ipso 
facto  a  citizen  of  the  United  States,  and  since  there  was  no 
definition  as  to  how  federal  citizenship  could  exist  except 
through  the  medium  of  state  citizenship.^^ 

Mr.  Doolittle  also  charged  that  the  first  section  was  in- 
tended to  give  validity  to  the  Civil  Rights  Bill,  pointing  to 
the  fact  that  Mr.  Bingham,  who  had  opposed  that  bill,  had 
introduced  it.  Mr.  Fessenden  replied  that  the  Committee 
of  Fifteen  had  never  discussed  it  in  his  presence  with  the 
view  of  making  that  bill  valid,  and  that  furthermore  that 
bill  was  not  discussed  in  that  connection  at  all,  the  section 
being  based  on  entirely  different  grounds.  Since  Mr.  Fes- 
senden was  frequently  absent  from  the  meetings  of  the  Com- 
mittee, it  is  possible  that  references  may  have  been  made  to 
the  Civil  Rights  Bill  during  his  absence.  Mr.  Howard, 
moreover,  stated  that  it  was  the  purpose  of  the  Committee 
to  put  the  Civil  Rights  Bill  beyond  the  legislative  power  of 
those  who  wished  to  deprive  the  freedmen  of  their  rights, 
thus  apparently  acknowledging  that  it  was  one  of  the  pur- 
poses of  the  Amendment  to  incorporate  that  bill  into  the 
Constitution.^^ 

Mr.  Williams,  of  Oregon,  pointed  out  the  fact  that  the 
second  section  precluded  the  idea  that  the  first  section  con- 
ferted  citizenship  upon  Indians,  since  only  Indians  that  were 
taxed  were  to  be  counted  in  the  basis  of  representation.  Mr. 
Saulsbury,  of  Delaware,  who  was  opposed  to  the  whole 
Amendment,  opposed  Mr.  Doolittle's  amendment  on  the 
ground  that  Indians  were  as  much  entitled  to  citizenship  as 
the  negroes.  The  amendment  was  then  rejected  by  a  vote 
of  30  to  10.  Mr.  Howard's  amendment  defining  citizenship 
was  then  agreed  to  without  a  division.^^  This  amendment, 
with  the  others  which  he  submitted,  was  sufficient  to  attach 
his  name  to  the  Fourteenth  Amendment,  for  it  was  often 
referred  to  merely  as  the  Howard  Amendment. 

"•  Ibid.,  p.  2893. 
"Ibid.,  p.  2896. 
"Ibid.,  p.  2897. 


Fourteenth  Amendment  Before   Congress.  91 

Mr.  Hendricks,  who  was  later  the  Democratic  nominee  for 
Vice  President,  said  that  the  first  section  failed  to  define  the 
rights  and  duties,  the  obligations  and  liabilities  of  citizenship,  i 
but  that  they  were  left  as  unsettled  as  they  had  been  during 
the  entire  course  of  our  history,  though  he  declared  that 
negroes,  coolies,  and  Indians  would  be  admitted  to  citizen- 
ship by  it.**" 

Mr.  Poland,  of  Vermont,  said  that  the  privileges  and  im- 
munities to  be  secured  by  the  second  clause  of  the  first  sec- 
tion were  those  found  in  the  second  section  of  the  Fourth 
Article  of  the  Constitution,  but  since  there  was  no  power  in 
Congress  to  enforce  them,  it  was  desirable  that  such  power 
be  given.  The  last  two  clauses  were  said  to  be  in  the  Dec- 
laration of  Independence  and  in  the  Constitution,  evidently 
meaning  some  or  all  of  the  first  eight  Amendments,  since 
one  of  the  clauses  was  taken  from  the  Fifth  Amendment. 
But  state  laws,  he  continued,  existed  in  violation  of  those 
principles.  Congress  had  shown  its  desire  and  intention  of 
uprooting  such  partial  legislation  as  existed  in  certain  States 
by  passing  the  Civil  Rights  Bill,  but  since  there  were  doubts 
in  the  minds  of  some  as  to  the  constitutionality  of  that  bill, 
he  thought  those  doubts  should  be  removed  by  putting  this 
section  into  the  Constitution,  thereby  empowering  Congress 
to  enforce  the  fundamental  principles  of  our  government.^" 

Mr.  Howe,  of  Wisconsin,  said  that  among  the  rights  and 
privileges  of  citizens  were  the  right  to  hold  land,  to  collect 
wages  by  process  of  law,  to  appear  in  Court  as  a  suitor  for 
any  wrong  done  or  right  denied,  and  to  give  testimony,  but 
that  these  were  not  the  only  rights  that  certain  States  had 
denied  or  might  deny.  He  cited  a  law  of  Florida  where 
only  negroes  were  taxed  to  support  their  own  schools,  and 
declared  that  such  laws  as  this  would  not  be  possible  under 
the  Amendment.^^ 

Mr.  Henderson,  of  Missouri,  said  that  the  persons  de- 
clared to  be  citizens  by  the  first  section  were  already  citizens 

"  Ibid.,  p.  2939. 
«"  Ibid.,  p.  2961. 
**  Ibid.,  Appendix,  p.  219. 


92  Adoption   of  the  Fourteenth  Amendment. 

under  a  fair  and  rational  interpretation  of  the  Constitution 
of  1789,  and  that  the  remaining  clauses  or  provisions  of  that 
section  merely  secured  the  privileges  and  rights  which  attach 
to  citizenship  in  all  free  governments.  The  aim  of  the 
Freedmen's  Bureau  and  Civil  Rights  Bills,  he  declared,  was 
to  break  down  the  system  of  oppression  that  existed  in  the 
South.  The  Civil  Rights  Bill  was  to  carry  out  section  two 
of  Article  Four,  he  declared.  Had  the  proposition  which  he 
introduced  earlier  in  the  session  been  adopted,  he  continued, 
the  necessity  for  the  whole  Amendment  would  have  been  re- 
moved. This  proposition  was  to  inhibit  the  States  as  to  dis- 
crimination against  persons  on  account  of  race  or  color  in 
prescribing  the  qualifications  of  voters.^^ 

Mr.  Johnson,  who  usually  affiliated  with  the  Democrats, 
favored  all  of  the  first  section  except  the  clause  which  pro- 
hibited States  from  making  or  enforcing  "  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States."  His  objection  to  this  clause  was  that  he  did 
not  know  what  its  effect  would  be,  though  he  was  present 
when  Mr.  Howard  gave  his  exposition  of  it.  He  therefore 
moved  that  the  clause  referred  to  be  struck  out,  but  his 
amendment  was  rejected.®^ 

An  effort  was  made  by  the  opponents  of  the  Amendment 
to  have  the  various  sections  of  it  submitted  as  separate 
amendments,, hoping  thereby  to  secure  the  rejection  of  some 
of  them,  but  the  advocates  of  it  refused  to  grant  this.  This 
was  the  first  instance  in  which  either  Congress  or  the  States 
had  to  accept  or  reject  an  Amendment  composed  of  such  dis- 
connected subjects. 

The  resolution  was  then  passed  by  the  Senate,  June  8, 
V  1866,  by  a  vote  of  33  to  11,  5  being  absent,  with  Stockton's 
seat  still  vacant.®* 

The  resolution,  as  amended  in  the  Senate,  was  brought  be- 
fore the  House  the  next  day,  June  9,  at  which  time  Mr.  Bout- 
well  gave  notice  that  the  amendments  made  by  the  Senate 
would  be  called  up  June  13.     Immediate  action  was  doubt- 


•"Ibid.,  pp.  3031-35. 
"Ibid.,  p.  3041. 
"Ibid.,  p.  3042. 


Fourteenth  Amendment  Before   Congress.  93 

less  postponed  to  give  the  majority  time  to  consult  and  decide 
as  to  the  course  which  they  should  pursue  in  regard  to  the 
amendments.  When  the  question  was  called  up  by  Mr. 
Stevens  on  the  appointed  day,  one  hour  was  given  to  the 
minority,  to  be  used  as  they  saw  fit,  notice  having  been  given 
that  the  previous  question  would  be  called  at  3  or  3 130 
o'clock.  Mr.  Stevens  stated  that  the  Union  portion  of  the 
Reconstruction  Committee  had  examined  the  amendments 
proposed  by  the  Senate,  and  that  they  unanimously  reported 
that  the  House  ought  to  concur  in  them.^^ 

Very  little  was  said  in  regard  to  the  first  section,  but  what 
was  said  only  corroborated  the  expressions  previously  made 
as  to  its  effect.  Mr.  Harding,  of  Kentucky,  an  opponent  of 
the  measure,  said  that  it  transferred  to  Congress  all  the 
powers  of  the  States  over  their  citizens,  and  that  Congress 
would  then  have  all  legislative  power.^*  Mr.  Baker,  of  Illi- 
nois, speaking  of  it  at  a  later  date,  July  9,  said  that  he  con- 
sidered it  important  as  clearing  away  bad  interpretations 
which  had  been  given  to  the  Constitution  rather  than  as  add- 
ing a  positive  grant  of  new  power.^^ 

The  amendments  of  the  Senate  were  concurred  in  by  the 
House^BylTTOte  of  i2oTcr'32,  32  being  absent."^  Not  a 
single  Republican  voted  in  the  negative  this  time,  since  the 
Senate  amendments  were  considered  more  favorable  than  the 
original  sections. 

We  have  already  noted  what  the  members  of  the  House 
thought  and  intended  to  accomplish  by  the  first  section  of 
the  Amendment,  and  since  that  section  was  not  modified  in 
the  Senate  except  by  the  prefixing  of  the  clause  declaring 
who  were  citizens  of  the  United  States,  thereby  merely  deter- 
mining to  whom  the  privileges  and  immunities  guaranteed 
in  that  section  should  apply,  we  may  say  that  there  is  no 
cause  or  reason  to  change  the  conclusion  which  has  been 
previously  given. 

If  the  analysis  of  the  debates  in  the  Senate  be  closely  fol- 

« Ibid.,  p.  3144. 
"Ibid.,  p.  3147. 

Ibid.,  Appendix,  p.  256. 
"Ibid.,  p.  3149. 


94  Adoption   of   the  Fourteenth  Amendment. 

lowed,  the  reader  will  see  that  the  expressions  or  declara- 
tions in  the  two  Houses  corroborate  and  strengthen  each 
other.  Mr.  Howard,  the  spokesman  of  the  Committee, 
stated  clearly  and  openly  what  evils  were  to  be  remedied 
and  what  objects  were  to  be  obtained  by  it,  and  there  was 
no  contradiction  from  any  source.  Many  of  the  Senators 
and  speakers  did  not  refer  to  the  first  section  at  all,  while 
several  barely  mentioned  it.  The  speeches  of  Messrs. 
Poland,  Henderson,  Johnson,  and  Howe,  while  not  saying 
that  the  Amendment  would  have  the  effect  ascribed  to  it 
by  Mr.  Howard,  support  the  position  taken  by  him,  espe- 
cially since  none  of  them  questioned  his  statements. 
In  conclusion,  we  may  say  that  Congress,  the  House  and 
A-   ^ftie  Senate,  had  the  following  objects  and  motives  in  view  for 

J    ivT  submitting  the  first  section  of  the  Fourteenth  Amendment  to 
•^      the, States  for  ratification: 

^^^1/     I-  To  tnake  the  Bill  of  Rights  (the  first  eight  Amend- 

"r^/  ments)  binding  upon,  or  applicable  to,  the  States. 

|»    I  2.JT0  give  validity  to  the  Civil  Rights  Bill. 

I  3.  To  declare  who  were  citizens  of  the  United  States. 

\  As  to  the  first  object — the  making  of  the  Bill  of  Rights 
Xa^fcwce  throughout  the  country  by  giving  Congress  power 
to  enforce  it — there  remains  little  to  be  said.  We  have 
already  observed  the  statements  made  in  regard  to  this 
purpose  in  the  course  of  the  debates,  and  we  feel  little 
hesitancy  in  saying  that  it  was  unquestionably  one  of  the 
leading  motives  for  the  inclusion  of  this  section  in  the 
Fourteenth  Amendment.  Congress  was  also  given  power 
to  enact  such  legislation  as  it  might  deem  "  appropriate  " 
to  enforce  this  purpose.  We  will  have  much  evidence  to 
support  this  conclusion  when  we  come  to  consider  the  legis- 
lation which  Congress  enacted  to  enforce  the  provisions  of 
the  Fourteenth  Amendment. 

As  to  the  second  purpose  or  motive,  to  give  validity  to 
the  Civil  Rights  Bill,  we  may  state  briefly  the  following 
facts.  We  have  already  referred  to  Mr.  Fessenden's  state- 
ment, but  even  granting  that  many  or  most  of  the  majority 
believed  in  the  validity  of  that  bill,  it  remains  to  be  said 


Fourteenth  Amendment  Before   Congress.  95 

that  some  of  the  best  constitutional  lawyers,  notably  Messrs. 
Johnson  and  Bingham,  thought  quite  differently.  There  is 
also  evidence  to  show  that  the  friends  of  the  measure  were 
not  so  certain  of  its  constitutionality,  for  they  thought  it 
advisable  to  put  that  question  beyond  dispute  and  cavil. 
This  attitude  on  the  part  of  many  is  shown  by  the  debates, 
though  there  is  another  motive  which  should  not  be  lost 
sight  of.  This  was  the  fear  that  the  Civil  Rights  Bill 
would  be  repealed  as  soon  as  the  Democrats  came  into 
power,  which  contingency,  it  was  feared,  would  take  place 
at  an  early  day.  This  reason  was  quite  frequently  stated, 
and  no  doubt  it  had  some  weight. 

It  cannot  fairly  be  said,  however,  as  was  charged  by 
some  in  the  debate,  that  the  men  who  supported  the  first 
section  of  the  Fourteenth  Amendment  thereby  acknowl- 
edged the  unconstitutionality  of  the  Civil  Rights  Bill,  thus 
stultifying  themselves,  for  it  is  quite  possible  that  a  man 
may  be  practically  certain  in  his  own  mind  that  a  measure 
is  constitutional  and  yet  may  fear  that  the  Courts  will  take 
a  different  view  of  it.  It  is  no  doubt  true  that  some,  who 
doubted  the  constitutionality  of  the  bill,  voted  for  it,  for 
several  acknowledged  that  they  had  their  doubts  about  it, 
and  a  few,  blinded  by  partisan  jealousy  and  sectional  hate, 
may  have  voted  for  it  while  believing  it  to  be  unconsti- 
tutional. 

It  was  a  time  when  party  spirit  was  at  its  height,  but  it 
is  absurd  to  make  a  wholesale  charge  that  the  great  major- 
ity of  those  who  voted  for  the  bill  believed  that  they  had 
no  power  to  pass  it.  There  is  little  doubt  that  the  bill  was 
unconstitutional,  and  that  the  Federal  Supreme  Court  would 
have  so  declared  it,  had  it  come  before  that  body,  but  the 
fact  remains  that  the  vast  majority  of  those  voting  for  it 
must  have  thought  they  had  the  power  to  pass  it. 

It  may  be  well  to  consider  the  causes  which  induced  Con- 
gress to  engraft  the  first  section  upon  the  Constitution.  We 
have  considered  some  of  these  reasons  in  connection  with 
the  report  of  the  Reconstruction  Committee,  but  principally 
in  connection  with  the  passage  and  enactment  of  the  Freed- 


96  Adoption   of  the  Fourteenth  Amendment. 

men's  Bureau  and  Civil  Rights  Bills.  The  debates  show 
that  frequent  reference  was  made  to  the  discriminating  leg- 
islation of  the  Southern  States,  the  oppressive  and  unequal 
laws  as  regard  the  negroes.  Of  course  these  laws  were  the 
excuses,  if  not  the  causes,  for  passing  such  bills  and  for  the 
final  incorporation  into  our  fundamental  law  of  that  section 
which  forbids  all  manner  of  discrimination  and  requires 
that  all  shall  have  the  equal  protection  of  the  laws.  These 
causes — the  so-called  "  black  laws  "  of  the  South — were 
unquestionably  exaggerated,  only  the  worst  instances  being 
given  and  then  no  allowance  whatever  being  made  for  the 
altered  position  of  the  negro.  Apparently  the  Radicals  did 
not  see,  or,  if  they  did  see,  ignored  the  fact  that  there  was 
any  need  of  stringent  vagrancy  laws  under  the  conditions 
in  which  the  South  was  placed  after  the  surrender  of  Lee. 
The  political  theories  and  philosophy  of  Sumner  and  other 
Radicals  never  took  into  consideration  the  well-known  fact 
that  the  best  of  theories  often  do  not  work  well  in  practice. 
Only  in  the  highest  developed  and  most  advanced  of  en- 
lightened communities  can  abstract  ethical  and  political 
theories  be  applied  with  safety.  The  laws  of  many  of  the 
Southern  States  may  have  appeared,  on  their  face,  to  be 
unjust,  and  some  probably  were,  but  it  was  equally  certain 
that  they  did  not  work  as  badly  and  unjustly  as  was  charged 
by  the  reformers  and  renovators. 

.'^Pinally,  it  may  be  said  that  the  following  objects  and 
/rights  were  to  be  secured  by  the  first  section :   Life,  liberty, 
and  property  not  to  be  denied  to  any  one  without  due  proc- 
ess of  law ;  trial  to  be  by  jury;  the  accused  to  be  confronted 
'       by  the  accuser ;  property  not  to  be  taken  without  compensa- 
tion ;  the  right  peaceably  to  assemble,  to  bear  arms,  etc. ; 
^    '   soldiers  not  to  be  quartered  on  any  one  without  his  consent ; 
\       and  cruel  and  unusual  punishments  not  to  be  inflicted  nor 
\       excessive  bail  to  be  required.     These,  Mn  addition  to  the 
I       rights  specifically  mentioned  in  the  Civil  Rights  Bill,  were 
I       to  be  secured  to  every  citizen,  and  it  was  furthermore  de- 
I      Glared  who  were  citizens.     It  also  seems  quite  evident  that 
I      it  was  intended  to  confer  upon  Congress,  by  the  fifth  sec- 


Fourteenth  Amendment  Before   Congress.  97 

tion,  the  power  to  determine  what  were  the  privileges  and 
immunities  of  citizens,  thereby  being  enabled  to  secure 
equal  privileges  and  immunities  in  hotels,  theaters,  schools, 
etc.,  but  this  phase  of  the  question  will  be  considered  in 
connection  with  the  subsequent  legislation  of  Congress  to 
enforce  the  Fourteenth  Amendment. 

This  partial  enumeration  shows  to  some  extent  what  Con- 
gress intended  to  accomplish  by  the  first  section.  We  shall 
not  consider  here  the  part  it  was  to  serve  as  a  political  plat- 
form with  which  to  go  before  the  people  in  the  exciting 
campaign  which  was  soon  to  follow.  The  political  ques- 
tions will  be  considered  in  connection  with  the  other  sec- 
tions which  were  almost  entirely  political  in  their  nature. 

Section  Two  of  the  Amendment, 
While  the  first  section  of  the  Amendment  is  the  one 
about  which  we  are  chiefly  concerned,  it  is  necessary  to  con- 
sider the  other  sections  in  order  to  be  able  to  understand  the 
motives,  which  might  otherwise  be  obscured,  underlying  the 
action  of  Congress  in  proposing  and  the  people  in  ratifying 
that  Amendment.  In  the  consideration  of  the  first  section, 
the  speeches,  reports  and  discussions  have  clearly  demon- 
strated that  a  great  increase  of  the  Federal  powers  was  to 
be  brought  about  by  that  section,  and  that  notwithstanding 
the  fact  that  a  great  majority  of  the  people  at  the  time 
believed  that  the  States  should  exercise  most,  if  not  all,  of 
the  rights  and  powers  which  they  had  up  to  that  time  exer- 
cised, the  Amendment  had  been  ratified.  Considered  alone, 
it  would,  under  these  circumstances,  be  somewhat  difficult 
to  understand  why  the  people  and  the  States  had  deliber- 
ately given  up  their  powers  to  the  Central  Government. 
The  chief  purpose  in  considering  the  second,  third,  and 
fourth  sections  of  the  Amendment  is,  therefore,  to  discover, 
if  possible,  any  cause  or  causes  which  might  have  had  weight 
in  inducing  the  people  to  accept  the  Amendment,  and  not 
so  much  for  their  intrinsic  value.  The  same  is  not  true  of 
the  fifth  section,  for  it  was  intended  to  authorize  Congress 
7 


98  Adoption   of   the  Fourteenth  Amendment.  \ 

to  enforce  the  other  sections.  With  the  exception  of  the 
first  and  fifth  sections,  which  may  be  regarded  as  one  sec- 
tion, the  second  section  is  by  far  the  most  important  of  the 
remaining  sections  for  the  purpose  of  this  study,  though  it 
has  never  had  any  effect  whatever  since  it  became  a  part 
of  the  fundamental  law  of  the  land.  This  is  due,  however, 
to  the  fact  that  the  Fifteenth  Amendment  practically  super- 
seded it,  or,  as  some  have  said,  nullified  it. 

The  second  section  was  political  both  in  origin  and  de- 
sign, and  it  must  be  said  to  the  discredit  of  the  39th  Con- 
gress that  the  political  part  of  the  Amendment  received  the 
^first  consideration^  /  It  is  true  that  the  first  section  was  also 
introduced  on  the  second  day  of  the  first  session  of  the 
39th  Congress,  but  Mr.  Stevens  was  the  only  one  in  the 
House  to  propose  an  Amendment  which  in  any  way  resem- 
bled the  first  section,  while  we  find  three,  Messrs.  Schenck, 
Stevens,  and  Broomall,  who  introduced  resolutions  propos- 
ing an  Amendment  to  the  Constitution  in  regard  to  repre- 
sentation.*' These  resolutions  had  the  same  object  in  view 
and  all  were  referred  to  the  Judiciary  Committee.  They 
differed  materially  from  the  second  section  as  finally  incor- 
porated in  the  Fourteenth  Amendment,  but  the  spirit  and 
purpose  were  the  same.  A  few  days  later  Messrs.  Blaine 
and  Pike  also  introduced  joint  resolutions  proposing  an 
Amendment  to  the  same  effect,  but  with  this  striking  dif- 
ference in  form.'^*'  The  Amendments  proposed  by  Messrs. 
Schenck,  Stevens  and  Broomall  based  representation  on 
legal  voters,  while  Mr.  Blaine's  proposition  was  more  nearly 
in  accord  with  the  section  as  it  now  stands  in  the  Constitu- 
tion, which  makes  neither  population  nor  voters  the  basis 
of  representation. 

The  object  of  all  these  resolutions  was  twofold:  pri- 
marily, to  reduce  Southern  representation,  and  secondarily, 
to  enfranchise  the  negro,^^  the  party  in  power  gaining  in 
either  case,  for  it  correctly  anticipated  that  the  negro  would, 

*39th  Cong.,  1st  Sess.,  pp.  9-10. 
.Ibid.,  pp.  135-36. 
Ibid.,  p.  141. 


Fourteenth  Amendment  Before    Congress.  99 

if  given  the  franchise,  support  the  party  which  gave  it  to 
him.  It  was  somewhat  freely  admitted  in  the  debates  that 
these  were  the  chief  objects  of  the  proposed  resolutions, 
for  only  by  this  means  was  it  thought  possible  to  keep  the 
control  of  the  government  in  the  hands  of  the  Republican 
party.  Although  it  was  clearly  evident  that  an  Amendment 
making  legal  voters  the  basis  of  representation  would  result 
advantageously  to  the  Republican  party  whether  the  negroes 
were  enfranchised  or  not,  the  measure  was  destined  to 
receive  opposition  from  some  of  the  members  of  that  party. 

The  compromise  in  the  original  Constitution  which  per- 
mitted three  fifths  of  the  slaves  to  be  counted  in  determin- 
ing the  basis  of  representation  was  a  concession  to  the 
South,  but  the  adoption  of  the  Thirteenth  Amendment  had 
nullified  that  provision  and  had  made  not  only  possible  but 
necessary  the  real  aim  of  the  framers  of  the  Constitution, 
namely,  the  basing  of  representation  on  population.  The 
counting  of  three  fifths  of  the  slaves  had  been  in  violation 
of  this  principle. 

Whether  voters  or  population  should  constitute  the  true 
basis  of  representation  is  a  question  still  open  for  discus- 
sion, though  there  is  very  little  doubt  but  that  we  would 
now  have  representation  based  on  male  electors  had  it  not 
been  for  sectionalism.  The  resolutions  introduced  by 
Messrs.  Stevens,  Broomall,  and  Schenck  were  acceptable  to 
the  majority  in  Congress  until  it  was  discovered  by  some 
of  the  Representatives  of  New  England  that  that  section 
would  lose  some  of  its  power  in  Congress  if  either  of  the 
proposed  measures  was  engrafted  upon  the  Constitution. 
It  was  to  overcome  this  difficulty  that  Mr.  Blaine  introduced 
his  resolution,  and  the  opposition  of  the  New  England  Rep- 
resentatives was  sufficient  to  change  the  form  of  the  reso- 
lutions which  were  introduced  on  the  second  day  of  the 
session. 

As  stated  by  Mr.  Blaine,  his  proposed  substitute  would 
not  alter  the  effect  of  the  original  measure  so  far  as  the 
South  was  concerned,  but  that  for  all  practical  purposes  the 
North  would  be  exempt  from  its  provisions.     Mr.  Blaine, 


lOO       Adoption   of   the  Fourteenth  Amendment. 

although  candid  enough  to  state  what  effect  the  change  in 
the  form  of  the  proposed  Amendment  would  have,  tried 
nevertheless  to  give  some  plausible  reason  for  it.  The  rea- 
son which  he  gave  was  that  to  make  voters  the  basis  of 
representation  would  tend  to  cheapen  suffrage  and  break 
down  the  barriers  which  made  an  enlightened  electorate 
possible,  since  each  State  would  desire  to  have  as  many 
voters  as  possible,  and  would,  therefore,  remove  all  quali- 
fications as  to  education,  citizenship,  etc.  Some  of  the 
New  England  States  made  education  a  qualification  for 
suffrage  and  most,  if  not  all  the  States,  at  that  time  did  not 
permit  aliens  to  vote.  It  seems  impossible  to  harmonize 
Mr.  Blaine's  reason  for  not  making  voters  the  basis  of  rep- 
resentation and  his  advocacy  and  support  of  a  proposition, 
the  avowed  purpose  of  which  was  to  force  the  South  either 
to  put  the  ballot  into  the  hands  of  an  ignorant  and  illiterate 
class  or  to  diminish  its  representation  in  proportion  to  the 
number  of  this  class  who  were  disfranchised. 

Mr.  Blaine  made  his  statement  as  to  the  effect  which  the 
proposed  Amendment  making  voters  the  basis  of  represen- 
tation would  have  in  New  England  on  January  8,  and  when 
Mr.  Stevens,  two  weeks  later,  although  he  had  introduced 
a  resolution  making  voters  the  basis,  presented  the  follow- 
ing resolution  from  the  Reconstruction  Committee: 

"  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within  this 
Union  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed:  Promded,  that  whenever  the  elective  franchise 
shall  be  denied  or  abridged  in  any  State  on  account  of  race 
or  color,  all  persons  of  such  race  or  color  shall  be  excluded 
from  the  basis  of  representation."  ^"^  This  resolution  was 
essentially  the  same  as  the  one  proposed  by  Mr.  Blaine,  and 
Mr.  Wilson,  of  Iowa,  Chairman  of  the  Judiciary  Commit- 
tee, stated  that  that  Committee,  to  whom  the  several  reso- 
lutions on  this  subject  had  been  referred,  had  determined 
to  report  a  resolution  identical  with  that  which  Mr.  Stevens 

"Ibid.,  p.  351.  ~ 


Fourteenth  Amendment  Before   Congress.        loi 

had  reportedJ^  This  coincidence  makes  it  apparent  that 
the  New  England  members  had  brought  pressure  to  bear 
to  secure  a  change  in  the  form  of  the  resolution  so  as  not 
to  affect  that  section.  The  resolution  as  reported  on  Jan- 
uary 22  also  provided  that  direct  taxes  should  be  appor- 
tioned in  the  same  manner,  but  this  was  omitted  when  it 
was  reported  back  by  the  same  Committee  on  January  31, 
1866. 

At  the  time  the  resolution  was  reported  Mr.  Stevens 
stated  that  he  wanted  it  to  pass  before  the  sun  went  down 
in  order  that  it  might  be  acted  upon  by  the  state  Legis- 
latures, twenty-two  of  which  were  in  session  at  the  time. 
The  minority  charged  that  this  haste  was  due  to  the  fact 
that  the  party  in  power  did  not  dare  to  submit  the  question 
of  negro  suffrage  openly  and  boldly  to  the  people.  There 
would  seem  to  be  some  basis  for  this  charge,  since  most, 
if  not  all,  of  the  Legislatures  had  been  chosen  at  an  excit- 
ing time  when  party  feelings  were  most  likely  to  be  pre- 
dominant. It  was  highly  probable,  therefore,  that  almost 
any  measure  could  be  passed  under  the  party  whip,  and  it 
was  to  avoid  this  that  the  minority  wanted  the  proposed 
Amendment  submitted  to  conventions  chosen  to  pass  on 
this  specific  question.'^*  The  measure  met  opposition  not 
only  from  the  minority  but  also  from  the  extreme  Radicals, 
the  latter  opposing  it  on  the  ground  that  it  permitted  the 
States  to  disfranchise  on  account  of  race  or  color.'^^ 

The  Radicals,  especially  those  who  had  advocated  the 
abolition  of  slavery,  were  not  slow  to  realize  that  the  South 
would  gain  several  representatives  by  the  emancipation  of 
the  slaves,  and  that  with  this  increased  power,  together 
with  what  support  the  minority  of  the  North  would  give, 
their  own  power  would  soon  be  destroyed.  Mr.  Conkling 
gave  a  table  showing  the  gain  or  loss  of  each  State  under 
the  proposed  Amendment,  provided  the  suffrage  remained 
as  it  was  in  i860.     According  to  this  table  the  North  would 

'Mbid.,  p.  351.  ' 

;;ibid.-,  p.  355- 
Ibid.,  pp.  386,  406,  and  Appendix,  p.  56. 


I02        Adoption   of   the  Fourteenth  Amendment. 

gain  13  while  the  South  would  lose  13,  being  equivalent  to 
a  net  gain  of  26  for  the  North  or  a  net  loss  of  26  for  the 
SouthJ« 

The  original  proposition  to  base  representation  on  voters 
would  have  increased  the  power  of  the  middle  and  western 
States  at  the  expense  of  New  England.  This  plan  seems 
to  have  been  the  one  favored  by  the  majority  of  the  Repub- 
licans, but  it  was  realized  that  it  could  not  receive  the  neces- 
sary majority  in  Congress  and  certainly  could  not  become 
a  part  of  the  Constitution  without  the  support  of  Nev/  Eng- 
land. Consequently  the  West  yielded  in  order  to  secure  a 
measure  that  would  keep  the  majority  in  power. 

Mr.  Eliot,  of  Massachusetts,  submitted  an  amendment 
which  differed  from  the  others  in  that  it  contained  a  pro- 
viso that  suffrage  should  not  be  denied  or  abridged  on 
account  of  race  or  color.''"'  This  proposition  was  not  popu- 
lar at  the  time,  but  it  was  later  incorporated  into  our  funda- 
mental law  by  the  Fifteenth  Amendment.  Mr.  Pike  ap- 
proved of  the  measure,  but  stated  that  it  was  generally 
acknowledged  that  such  an  amendment  would  be  rejected 
by  the  States  and  that  it  would  be  useless,  therefore,  to 
submit  it.  In  regard  to  the  Blaine  proposition,  which  was 
then  before  the  House,  Mr.  Pike,  a  member  of  the  major- 
ity, declared  that  its  purpose,  as  he  understood  it,  was  to 
coerce  the  South  into  giving  what  they  (Congress)  were 
unwilling  to  do  directly.  In  his  opinion,  there  could  be 
but  two  objects  in  view :  the  lessening  of  the  political  power 
of  the  South  and  the  protection  of  the  negroes,  the  latter 
of  which  would  not  be  accomplished  by  adopting  the 
Amendment,  he  declared,  and  the  former  might  be  evaded 
on  other  grounds.'^*  Others  took  also  the  position  that 
it  was  not  the  proper  thing  to  try  to  accomplish  some- 
thing indirectly  which  should  be  done  directly.''®  The  pro- 
tection of  the  negro  was  made  the  cloak  under  which  some 
hoped  to  conceal  their  partisan  motives,  but  it  was  too 

"Ibid.,  p.  357. 
"Ibid.,  p.  406. 
"Ibid.,  p.  407. 
"Ibid.,  Appendix,  p.  56. 


Fourteenth  Amendment  Before   Congress.        103 

transparent  to  deceive  any  one  who  gave  the  least  attention 
to  the  subject.  It  is  interesting  to  see  how  the  negro  was 
made  use  of  for  the  most  contradictory  legislation.  In  the 
first  place,  the  Thirteenth  Amendment  was  urged  as  a  neces- 
sity to  give  freedom  to  a  class  which  slavery  had  degraded 
and  made  ignorant ;  we  next  see  negro  suffrage  in  the  Dis- 
trict of  Columbia  advocated  as  if  the  freedmen  were  capable 
of  exercising  the  highest  functions  and  privileges  of  citizen- 
ship ;  the  Freedmen's  Bureau  was  then  declared  to  be  neces- 
sary, as  the  negroes  were  weak  and  ignorant  and  needed  a 
guardian  as  it  were ;  and  then  finally  universal  suffrage  was 
urged  as  the  panacea  for  all  their  troubles. 
\  Mr.  Stevens,  speaking  of  the  proposed  resolution,  after  it 
had  been  reported  back  January  31,  declared  boldly  that  he 
preferred  it  to  one  declaring  for  universal  suffrage,  as  th^ 
latter  would  give  the  South  full  representation,  a  thing 
which  might  interfere  with  Radical  plans,  unless  there  were 
loyal  men  enough  to  control  the  representation  from  that  sec- 
tion. "  But  I  do  not  want  them  to  have  representation,"  he 
stated  unequivocally,  "  I  say  it  plainly — I  do  not  want  them 
to  have  the  right  of  suffrage  before  this  Congress  has  done 
the  great  work  of  regulating  the  Constitution  and  laws  of 
this  country  according  to  the  principles  of  the  Declaration  of 
Independence."*''  He  seemed  to  fear  that  the  South  might 
be  able  to  control  the  negro  vote  at  the  time  and  was  un- 
willing to  take  any  risks  until  the  Constitution  had  been  so 
amended  as  to  intrench  the  Radicals  in  power. 

Mr.  Schenck,  of  Ohio,  moved  a  substitute  for  the  resolu- 
tion as  reported  by  Mr.  Stevens.  This  substitute  was  to  base 
representation  on  voters,  but  it  was  defeated  by  a  vote  of  131 
to  29,  those  in  favor  of  it  being  almost  entirely  from  Ohio, 
Indiana,  Illinois  and  a  few  other  States  in  the  Middle  West 
and  West.  It  is  more  than  probable  that  a  majority  of  the 
Republican  party  favored  the  Schenck  substitute,  but  the 
statement  of  Mr.  Stevens  that  the  Amendment  could  not  be 
ratified  in  that  form  carried  great  weight  and  this  was  also 
made  evident  by  the  position  of  the  New  England  members. 

"  Ibid.,  p.  536. 


104        Adoption   of   the  Fourteenth  Amendment. 

The  resolution  as  reported  by  Mr.  Stevens  from  the  Recon- 
struction Committee  was  adopted  by  a  vote  of  120  to  46.^^ 
Mr.  Stevens  stated  that  he  had  at  first  favored  a  proposition 
similar  to  the  substitute  offered  by  Mr.  Schenck,  but  that 
when  he  saw  that  it  was  impossible  to  secure  it  he  gave  it  up. 
He  also  expressed  the  desire  that  his  proposition  that  "  all 
national  and  state  laws  shall  be  equally  applicable  to  every 
citizen,  and  no  discrimination  shall  be  made  on  account  of 
race  or  color  "  would  be  brought  forward.  In  his  opinion 
it  was  unwise  to  join  it  with  the  proposition  in  regard  to  rep- 
resentation,^^ and  this  statement  should  be  remembered 
when  we  come  to  consider  this  question  later.  Mr.  Benja- 
min, of  Missouri,  opposed  Mr.  Schenck's  proposition  on  the 
ground  that  the  representation  of  Missouri  would  be  reduced 
from  9  to  4,  since  the  Confederates  had  been  disfranchised 
in  that  State. 

The  resolution  was  destined  to  meet  such  opposition  in 
the  Senate  as  to  foreshadow  its  defeat.  The  extreme  Radi- 
cals, like  Sumner  and  Yates,  joined  with  the  Democrats, 
made  it  impossible  to  pass  it  by  the  necessary  two  thirds 
vote,  but  what  a  strange  combination!  To  think  of  Sauls- 
bury  and  Garrett  Davis  voting  with  Sumner,  Yates  and 
Pomeroy!  The  Democrats  were  opposed  to  the  measure  in 
toto,  while  the  extreme  Radicals  opposed  it  because  it  seemed 
to  sanction  the  right  of  the  States  to  disfranchise  on  account 
of  race  or  color.  It  was  openly  acknowledged  in  the  debate 
that  an  Amendment  denying  the  right  of  the  States  to  deny 
suffrage  on  account  of  race  or  color,  which  Mr.  Henderson 
had  proposed,  could  not  possibly  be  ratified  by  the  necessary 
three  fourths  of  the  States.  This  opinion  was  held  by  such 
men  as  Fessenden,  Wilson,  Williams,  and  others. 

Mr.  Henderson,  who  was  in  a  sense  an  extreme  Radical, 
yet  apparently  an  honest  one,  fearlessly  attacked  the  position 
of  those  who  were  for  steering  a  middle  course,  showing 
that  at  the  beginning  of  the  session  they  had  appeared  en- 
thusiastic for  an  Amendment  basing  representation  on  voters, 

"Ibid,  p.  538.  ~ 

"Ibid.,  p.  537. 


Fourteenth  Amendment  Before   Congress.        105 

but  that  this  enthusiasm  had  suddenly  grown  cold  and  that 
the  proposition  was  in  disfavor.  The  proposition  basing 
representation  on  voters  was  at  least  fair  and  equal,  leaving 
each  State  to  settle  the  question  of  the  franchise  for  itself, 
putting  no  stigma  on  any  State,  and  applying  equally  to  the 
North  and  to  the  South,  though  of  course  its  main  purpose 
was  to  affect  the  South.  If  the  provision  in  the  Constitu- 
tion basing  representation  on  population  was  to  be  changed 
at  all,  then  it  seems  that  no  fairer  or  more  just  basis  than 
that  of  legal  voters  could  be  obtained.  Mr.  Henderson 
stated  that  this  met  with  the  hearty  approval  of  the  members 
of  Congress,  they  being  as  "  ready  to  accept  it,  as  they  would 
accept  a  demonstration  of  Euclid."  As  has  been  noted,  the 
discovery  of  Mr.  Blaine  that  the  New  England  States  would 
lose  slightly  if  this  plan  were  accepted  caused  this  sudden 
change  of  feeling,  for  of  course  the  suffrage  laws  and  the 
representation  of  the  loyal  States  must  not  be  affected. 
Consequently  the  new  plan  was  concocted. 

Mr.  Henderson  clearly  pointed  out  the  sectionalism  and 
partisanship  in  the  change  which  was  made  in  the  form  of 
the  proposition  in  that  the  South  would  be  made  to  bear  the 
penalty  for  denying  suffrage  to  the  negro,  while  the  North 
and  East  could  deny  it  with  impunity.  The  second  difficulty 
to  be  overcome  was  the  selection  of  words  which  would  have 
this  effect  on  the  South,  while  at  the  same  time  not  arousing 
the  prejudices  of  the  North  against  negro  suffrage.  Mr. 
Henderson  stated  that  both  of  these  difficulties  had  been  sur- 
mounted in  the  proposition  which  had  been  reported  from  the 
Reconstruction  Committee  and  passed  by  the  House,  and 
emphatically  declared  that  its  purpose  was  to  enfranchise 
the  negro  in  the  South  while  keeping  him  disfranchised  in 
the  North.  It  appeared  equal,  yet  operated  unequally  con- 
tinued the  Senator,  and  began  by  "  assuming  that  the  object 
to  be  attained  by  its  adoption  was  wrong.  The  object  is 
negro  suffrage."  According  to  Mr.  Henderson  the  predomi- 
nant motive  was  not  the  elevation  of  the  negro  for  his  own 
good,  but  the  punishment  of  the  South,*^  and  in  this  view  he 

''Ibid.,  Appendix,  pp.    115-22. 


io6        Adoption   of   the  Fourteenth  Amendment. 

was  undoubtedly  correct.  More  weight  is  to  be  given  to  his 
statements  in  this  respect  from  the  fact  that  he  affiHated  with 
the  Radicals,  usually  voting  with  them,  and  so  not  so  likely 
to  exaggerate  when  exposing  his  own  colleagues. 

In  fact,  as  Mr.  Hendricks  pointed  out,  the  resolution  based 
representation  on  neither  population  nor  voters,  but  was 
rather  a  mingling  of  the  two,  being  a  political  hybrid  purely 
to  serve  political  purposes,  since  some  States  were  permitted 
to  count  the  non-voting  population,  while  others  were  not.** 
The  resolution  was  to  be  so  arranged  that  appeal  could  be 
made  to  Northern  prejudices  and  self-interests  without  in- 
spiring any  antipathy  as  regards  the  racial  question.  The 
motion  to  put  the  resolution  on  its  third  reading,  which  was 
really  a  test  vote,  received  only  25  yeas  to  22  nays,  far  short 
of  the  necessary  two  thirds.®**  This  was  reconsidered  of 
course  in  order  to  give  an  opportunity  to  withdraw  or  drop 
the  resolution,  and  so  prevent  its  actual  defeat. 

This  action  on  the  part  of  Congress  is  sufficient  to  show 
that  the  first  subject  to  be  considered  was  a  political  one,  for 
during  this  time  we  hear  nothing  of  the  resolution  which 
later  became  the  first  section.  It  was  also  demonstrated  that 
a  proposition  basing  representation  on  voters  would  be 
acceptable  to  most  of  the  Republicans  with  the  exception  of 
the  New  England  members.  Before  proceeding  further 
with  this  question  in  Congress,  it  may  be  well  to  see  what 
was  taking  place  in  the  Reconstruction  Committee  on  this 
particular  phase  of  reconstruction,  for  it  was  this  Committee 
which  really  decided  what  form  the  different  propositions 
should  take.  All  proposed  measures  as  to  reconstruction 
were  referred  to  this  Committee  without  debate. 

By  the  journal  of  that  Committee,  further  evidence  is 
given  to  show  that  the  question  of  party,  and  not  of  right  and 
justice,  was  given  precedence.  At  the  first  meeting  of  the 
Committee,  January  6,  1866,  a  committee  of  three  was  ap- 
pointed to  wait  upon  the  President  and  request  him  to  defer 
further  Executive  action  until  the  Reconstruction  Commit- 

"  Ibid.,  p.  878. 
"  Ibid.,  p.  1289. 


Fourteenth  Amendment  Before   Congress.        107 

tee  should  take  action  or  decide  on  some  plan.  At  the  next 
meeting,  January  9,  this  sub-committee  reported  orally  that 
the  President  had  been  informed  "  that  the  Committee  de- 
sired to  avoid  all  possible  collision  or  misunderstanding  be- 
tween the  Executive  and  Congress  in  regard  to  the  relative 
positions  of  Congress  and  the  President,"  and  that  the  Presi- 
dent, while  saying  that  it  was  desirable  to  advance  recon- 
struction as  rapidly  as  possible,  consented  to  do  no  more  for 
the  present  in  order  to  secure  harmony  of  action.  The  fol- 
lowing resolution  was  submitted  at  this  meeting  by  Mr.  Fes- 
senden,  its  chairman,  and  unanimously  adopted.  "  Resolved, 
That  all  the  resolutions  submitted  to  or  adopted  by  this 
Committee,  the  views  expressed  in  Committee  by  its  different 
members,  all  votes  taken,  and  all  other  proceedings  in  Com- 
mittee, of  whatever  nature,  be  regarded  by  the  members  of 
the  Committee  and  the  clerk  as  of  a  strictly  confidential  char- 
acter, until  otherwise  ordered." 

It  was  also  at  this  second  meeting  that  the  first  resolution 
proposing  an  Amendment  to  the  Constitution  was  submitted. 
It  was  to  base  representation  on  legal  voters  and  was  sub- 
mitted by  Mr.  Stevens.  This  resolution  was  discussed,  but 
further  consideration  postponed  until  the  meeting  of  the 
Committee  that  evening.  The  entire  evening  session  was  de- 
voted to  a  discussion  of  it,  but  no  agreement  was  reached. 
Mr.  Fessenden  introduced  a  resolution  which  is  quite  signifi- 
cant, since  it  proposed  that  the  Southern  States  should  not 
be  allowed  to  participate  in  the  government  until  the  basis  of 
representation  had  been  modified  and  the  rights  of  all  per- 
sons amply  secured  by  constitutional  provisions.  This  reso- 
lution was  not  considered  at  the  time,  however.*® 

At  the  third  meeting,  three  days  later,  thirteen  of  the 
Committee  voted  that  the  basis  of  representation,  as  then 
provided  in  the  Constitution,  ought  to  be  changed.  Mr. 
Grider,  of  Kentucky,  was  the  only  vote  in  the  negative,  Mr. 
Rogers  being  absent.  After  the  vote  on  this  proposition 
had  been  taken,  Mr.  Johnson,  of  Maryland,  submitted  this 
resolution :  "  Resolved,  That  in  the  opinion  of  this  Com- 

**  Reconstruction   Committee  Journal,  p.  5. 


io8        Adoption   of   the  Fourteenth  Amendment. 

mittee,  Representatives  should  be  apportioned  among  the 
several  States  according  to  their  respective  number  of  legal 
voters."  This  must  have  been  in  substance  the  same  as 
the  one  submitted  by  Mr.  Stevens  at  the  previous  meeting, 
and  the  vote  on  it  is  rather  interesting.  Messrs.  Grimes, 
Johnson,  Stevens,  Washburne,  Bingham,  and  Blow  voted 
for  it,  while  Messrs.  Fessenden,  Harris,  Howard,  Williams, 
Morrill,  Grider,  Conkling,  and  Boutwell  voted  against  it. 
Mr.  Rogers  was  absent.^^  It  will  be  noticed  that  every  one 
from  New  England  voted  in  the  negative,  and  it  may  prop- 
erly be  inferred  that  they  had  been  influenced  by  the  state- 
ment of  Mr.  Blaine  just  four  days  before  as  to  the  effect  of 
such  an  Amendment  on  New  England.  Mr.  Grider's  oppo- 
sition to  any  change  in  the  basis  of  representation  was  prob- 
ably due  to  the  fact  that  it  would  cause  his  State  to  have 
fewer  Representatives. 

A  sub-committee  consisting  of  Messrs.  Fessenden, 
Stevens,  Howard,  Conkling,  and  Bingham  was  appointed 
at  this  meeting,  to  which  all  propositions  relating  to  the 
question  of  representation  were  to  be  submitted.  The  par- 
tisanship of  the  Committee  was  strikingly  shown  in  the 
composition  of  this  sub-committee,  for  the  minority  was 
given  no  representation  at  all.  It  is  all  the  more  noticeable 
from  the  fact  that  Mr.  Johnson  was  favorably  disposed 
towards  a  change  in  the  method  of  apportionment,  as  was 
disclosed  by  his  votes  in  the  Committee.  The  minority  was 
no  doubt  denied  recognition  on  the  sub-committee  in  order 
that  an  opportunity  might  be  given  to  discuss  the  effect  of 
the  several  propositions  upon  the  party  interests  without  any 
danger  of  their  reasons  being  made  public. 

When  the  Committee  met  January  20,  the  sub-committee 
reported  two  propositions  for  the  consideration  of  the  Com- 
mittee. To  the  proposition  which  was  selected  by  the  Com- 
mittee was  to  be  joined  the  favorite  section  of  Mr.  Bing- 
ham. Mr.  Stevens  opposed  uniting  the  two,  and  moved  that 
the  proposed  section  be  separated  from  the  resolution  which 
might  be  selected  by  the  Committee.     This  motion  prevailed 

"Ibid.,  p.  7. 


Fourteenth  Amendment  Before    Congress.        109 

by  a  vote  of  10  to  4,  with  i  absent,  thus  clearly  showing 
that  the  consensus  of  opinion  at  this  time  was  that  the  two 
sections  were  so  dissimilar  and  unrelated  as  to  make  it  ad- 
visable to  report  them  as  separate  articles. 

The  first  of  the  proposed  resolutions  submitted  by  the  sub- 
committee is  as  follows :  "  Representatives  and  direct  taxes 
shall  be  apportioned  among  the  several  States  within  this 
Union  according  to  the  respective  number  of  citizens  of  the 
United  States  in  each  State ;  and  all  provisions  in  the  Con- 
stitution or  laws  of  any  State,  whereby  any  distinction  is 
made  in  political  or  civil  rights  or  privileges,  on  account  of 
race,  creed,  or  color,  shall  be  inoperative  and  void."  The 
second  one  reads  as  follows :  "  Representatives  and  direct 
taxes  shall  be  apportioned  among  the  several  States  which 
may  be  included  within  this  Union,  according  to  their  re- 
spective number,  counting  the  whole  number  of  citizens  of 
the  United  States  in  each  State ;  provided,  that,  whenever  the 
elective  franchise  shall  be  denied  or  abridged  in  any  State 
on  account  of  race,  creed,  or  color,  all  persons  of  such  race, 
creed,  or  color,  shall  be  excluded  from  the  basis  of  repre- 
sentation."^* The  second  resolution  was  chosen  by  a  vote 
of  II  to  3,  one  being  absent.  The  negative  votes  were  cast 
by  Messrs.  Fessenden,  Howard,  and  Grider.  No  reason 
was  given  for  this  choice,  but  it  seems  proper  to  infer,  from 
what  had  been  said  in  Congress,  that  it  was  due  to  the  fact 
that  the  Committee  feared  that  the  first  one  was  too  strong 
in  regard  to  negro  suffrage,  since  it  would  nullify  nearly 
every  state  law  in  respect  to  that  subject. 

It  was  perceived  almost  immediately  that  the  measure 
which  had  been  decided  upon  was  drawn  too  loosely  to 
accomplish  the  purpose  of  those  who  were  most  anxious  to 
change  the  basis  of  representation,  since  it  might  affect  the 
North  as  well  as  the  South,  for  aliens  were  not  citizens. 
Furthermore,  the  Dred  Scott  decision  had  not  been  reversed, 
and  consequently  negroes  were  not  citizens.  Mr.  Stevens 
proposed  an  amendment  to  the  measure  declaring  who  were 
to  be  considered  citizens  of  the  United  States,  but  Mr.  Conk- 

"Ibid.,  p.  9. 


no        Adoption   of   the  Fourteenth  Amendment. 

ling's  proposal  to  strike  out  the  words  "  citizens  of  the 
United  States  in  each  State  "  and  to  insert  in  lieu  thereof 
"  persons  in  each  State,  excluding  Indians  not  taxed  "  was 
adopted  by  a  vote  of  ii  to  3,  Messrs.  Fessenden,  Stevens, 
and  Bingham  casting  negative  votes.  The  word  "  creed  " 
was  stricken  out  on  motion  of  Mr.  Morrill.  The  proposed 
article  as  amended,  was  then  adopted  by  a  vote  of  13  to  i, 
Mr.  Rogers  casting  the  only  negative  vote.  Mr.  Johnson 
was  absent.  Messrs.  Howard  and  Grider  stated  that  they 
retained  the  right  to  support  a  proposition  more  in  accord- 
ance with  their  views  if  the  opportunity  presented  itself  in 
their  respective  houses.  It  was  then  ordered  that  the  reso- 
lution be  reported  to  the  Senate  and  House. 

No  reason  was  given  in  the  Committee  for  substituting 
"  persons  "  for  "  citizens,"  but  we  do  not  have  to  rely  en- 
tirely upon  our  own  minds  in  stating  what  the  change  on 
its  face  suggests,  for  we  have  the  testimony  of  the  person 
who  made  the  motion  which  resulted  in  the  change.  The 
reasons  given  by  Mr.  Conkling  when  the  matter  was  under 
discussion  in  the  House  are  as  follows :  ( i )  Because  "  per- 
sons," not  "  citizens,"  had  always  constituted  the  basis ;  (2) 
because  it  would  narrow  the  basis  of  taxation  on  account  of 
the  unequal  number  of  aliens  in  the  several  States;  (3) 
because  many  of  the  States  held  representation  in  part  by 
reason  of  their  aliens,  and  that  the  Legislatures  and  people 
of  such  States  would  not  ratify  an  Amendment  which  would 
reduce  their  representation.  It  needs  but  a  cursory  glance 
to  see  that  the  third  reason  is  the  only  one  which  really  had 
any  weight.  If  the  first  reason  was  to  be  given  any  con- 
sideration, it  would  be  equally  applicable  to  the  question  of 
changing  the  basis  of  representation  at  all,  since  it  might 
be  said  with  equal  force  that  the  basis  given  in  the  Consti- 
tution should  not  be  changed.  The  second  reason  needs 
no  remark,  since  the  phrase  "  and  direct  taxes  "  was  after- 
wards stricken  out  by  the  Coipmittee,  and  besides  direct 
taxes  have  been  used  so  infrequently  by  the  Federal  Govern- 
ment as  to  make  it  of  little  moment.  There  seems  to  be 
little  doubt  but  that  the  word  "  citizens  "  would  have  re- 


Fourteenth  Amendment  Before    Congress.        1 1 1 

mained  had  it  not  been  for  the  third  reason.  It  might  be 
stated  with  almost  equal  accuracy  that  the  change  would 
have  been  made  even  if  the  Amendment  could  have  been 
adopted  without  the  change,  since  it  was  not  the  desire  or 
purpose  of  the  majority  to  reduce  their  own  power.  Mr 
Conkling  stated  that  they  wanted  to  change  the  Constitu- 
tion as  little  as  possible — just  enough  to  secure  the  object 
aimed  at,  which  was  evidently  the  reduction  of  the  polit- 
ical power  of  the  South.®" 

The  resolution,  after  some  debate  in  the  House,  was  re- 
ferred back  to  the  Committee,  and  was  laid  before  the  Com- 
mittee by  Mr.  Stevens,  January  31.  After  discussion,  Mr. 
Stevens  moved  to  strike  out  "  and  direct  taxes,"  which  was 
agreed  to  by  a  vote  of  12  to  2.  Mr.  Johnson  moved  to 
amend  the  proviso  to  read  as  follows :  "  Provided,  That 
whenever  the  elective  franchise  shall  be  denied  or  abridged 
in  any  State  on  account  of  race  or  color,  in  the  election 
of  the  members  of  the  most  numerous  branch  of  the  state 
Legislature,  or  in  the  election  of  the  electors  for  President 
or  Vice  President  of  the  United  States,  or  members  of  Con- 
gress, all  persons  therein  of  such  race  or  color  shall  be 
excluded  from  the  basis  of  representation."  This  was  re- 
jected, but  Mr.  Johnson,  in  order  to  test  the  sense  of  the 
Committee  submitted  another  amendment  to  the  effect  that 
the  condition  of  slavery  should  be  included  among  the 
grounds  of  disqualifications  referred  to  in  relation  to  the 
elective  franchise.  This  amendment  was  rejected  by  a  vote 
of  7  to  6.  Mr.  Stevens  moved  that  the  resolution  as 
amended  be  reported  back  to  the  House  with  the  recom- 
mendation that  it  do  pass.  This  motion  prevailed  by  a  vote 
of  10  to  4,  Mr.  Fessenden  voting  with  the  Democrats  against 
reporting  the  resolution.  It  was  this  bill  which  was  passed 
by  the  House  and  practically  killed  in  the  Senate,  and  we 
hear  nothing  more  of  it  in  either  House  until  it  was  re- 
ported April  30,  as  a  part  of  what  became  the  Fourteenth 
Amendment.  While  the  resolution  in  the  form  in  which 
it  passed  the  House  in  February  was  being  discussed,  Mr. 

"  Globe,  39th  Cong.,  ist  Sess.,  p.  359. 


112        Adoption   of   the  Fourteenth  Amendment. 

Lawrence,  of  Ohio,  a  Republican,  asked  with  what  grace 
the  North  could  say  to  the  South  "  you  shall  have  no  repre- 
sentation for  freedmen  not  enfranchised  "  while  insisting 
upon  representation  for  aliens,  women,  and  children.®" 

Although  the  records  of  Congress  are  silent  as  to  what 
was  transpiring  during  the  interval  between  the  defeat  of 
the  proposed  Amendment  in  the  Senate,  there  is  much  evi- 
dence to  show  that  the  majority  were  often  in  consultation 
to  devise  ways  and  means  by  which  their  measures  might  be 
passed.  The  great  problem  was  so  to  frame  and  unite  the 
several  measures  as  to  secure  the  necessary  two  thirds  in 
the  Senate,  for  it  had  been  clearly  demonstrated  on  several 
occasions  that  practically  any  measure  could  be  forced 
through  the  House. 

Five  months  had  passed  since  the  assembling  of  Con- 
gress without  any  definite  plan  from  the  Reconstruction 
Committee.  Not  until  April  30  was  there  any  plan  which 
attempted  to  deal  with  the  question  of  reconstruction.  To 
be  sure  two  separate  resolutions  had  been  reported  from  the 
committee,  but  the  one  fathered  by  Mr.  Bingham  did  not 
even  reach  a  vote  in  the  House,  so  great  was  the  opposition 
to  it  by  members  of  the  majority,  and  the  other  one  met  a 
similar  fate  in  the  Senate.  The  people  were  getting  rest- 
less and  dissatisfied  with  the  progress  made  by  Congress, 
since  they  wanted  to  know  what  conditions  Congress  was 
going  to  require.  The  party  leaders  realized  the  danger  of 
permitting  this  dissatisfaction  to  grow  and  of  going  before 
the  people  in  the  fall  election  with  no  plan  for  the  restora- 
tion of  the  Southern  States.  The  great  mass  of  the  people 
thought  the  Union  should  be  restored  as  soon  as  possible, 
and  it  became  necessary  to  submit  some  plan,  whether  a  plan 
that  could  be  ratified  or  not. 

With  two  failures  to  the  credit  of  the  Reconstruction 
Committee,  it  was  easily  perceived  that  a  third  one  might 
be  disastrous  to  the  party.  It  was  at  such  a  time  and  under 
such  circumstances  that  the  Reconstruction  Committee  sub- 
mitted the  draft  of  the  Fourteenth  Amendment  on  April  30, 

"Ibid.,  p.  405. 


Fourteenth  Amendment  Before   Congress.        113 

after  five  months  of  deliberation,  consultation,  and  taking  of 
testimony,  as  its  plan  for  restoration,  or  as  might  be  prop- 
erly said  of  it,  as  its  campaign  platform,  for  it  was  to  serve 
this  purpose  also. 

It  is  necessary,  therefore,  to  examine  the  proceedings  of 
the  Committee  to  see  what  steps  were  taken  to  unite  the 
several  propositions  into  one  which  was  so  entirely  dis- 
similar and  disconnected.  The  records  as  given  in  the  Jour- 
nal of  the  Reconstruction  Committee  show  that  the  first  pro- 
posal to  bring  the  different  resolutions  together  was  made  on 
April  21,  only  nine  days  before  it  was  reported  to  Congress 
in  this  new  form.  The  plan  was  submitted  by  Mr.  Stevens, 
though  its  author  was  Robert  Dale  Owen,  as  has  been  stated 
in  the  earlier  pages  of  this  chapter.  The  question  of  suf- 
frage was  incorporated  in  the  second  and  third  sections, 
which  were  as  follows : 

jl*  Sec.  2.  From  and  after  the  4th  day  of  July,  1876,  no 
discrimination  shall  be  made  by  any  State,  nor  by  the  United 
States,  as  to  the  enjoyment  by  classes  of  persons  of  the  right 
of  suffrage,  because  of  race,  color,  or  previous  condition  of 
servitude.J 
7"  Sec.  3.  Until  the  4th  day  of  July,  1876,  no  class  of  per- 
sons, as  to  the  right  of  any  of  whom  to  suffrage  discrimi- 
nation shall  be  made  by  any  State,  because  of  race,  color,  or 
previous  condition  of  servitude,  shall  be  included  in  the  basis 
of  representation."^^ 

The  first  of  these  sections  was  adopted  by  a  vote  of  8 
to  4,  Mr.  Boutwell  voting  with  the  Democrats,  and  the  sec- 
ond one  was  adopted  by  a  vote  of  9  to  3,  a  strict  party  vote."^ 
Messrs.  Fessenden,  Harris,  and  Conkling  were  absent. 
The  entire  resolution,  including  these  two  sections,  was  or- 
dered to  be  reported  to  both  Houses  by  a  vote  of  7  to  6, 
but  this  was  later  reconsidered  by  a  vote  of  10  to  2  on 
account  of  the  absence  of  Mr.  Fessenden,  the  Chairman 
of  the  Committee.®^     This  was  on  April  25,  and  when  the 

**  Reconstruction  Committee  Journal,  p.  24. 
**  Ibid.,  pp.  25-26. 
»*  Ibid.,  p.  32. 
8 


114       Adoption   of  the  Fourteenth  Amendment. 

Cgmmittee  met  April  28,  Mr.  Stevens  moved  to  strike  out  all 
of  section  2  and  "  until  the  4th  day  of  July,  1876  "  of  sec- 
tion 3.  This  motion  prevailed  by  a  vote  of  12  to  2,  Mr. 
Fessenden  not  voting.  Mr.  Williams  then  moved  t-o  strike 
out  section  3,  and  to  insert  the  following : 
,*' Representatives  shall  be  apportioned  among  the  several 
'  States  which  may  be  included  within  this  Union  according 
to  their  respective  numbers,  counting  the  whole  number  of 
persons  in  each  State,  excluding  Indians  not  taxed.  But 
whenever  in  any  State  the  elective  franchise  shall  be  denied 
to  any  portion  of  its  male  citizens  not  less  than  21  years  of 
age,  or  in  any  way  abridged,  except  for  participation  in  re- 
bellion or  other  crime,  the  basis  of  representation  in  such 
State  shall  be  reduced  in  the  proportion  which  the  number  of 
such  male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  not  less  than  21  years  of  age."®* 

Mr.  Williams'  proposition  was  debated  at  some  length  and 
finally  adopted  by  a  vote  of  12  to  3,  Messrs.  Howard,  Ste- 
vens, and  Washburne  being  in  the  negative.  The  proposi- 
tion as  submitted  by  Mr.  Williams  was  the  one  presented  as 
v^ection  2  of  the  proposed  Amendment  on  April  3Qe^ 

The  phraseology  of  this  section  is  quite  different  from 
that  of  the  Amendment  which  passed  the  House  January 
31  and  which  was  defeated  in  the  Senate  March  9,  though 
the  two  measures  are  practically  the  same  in  essence.  The 
main  difference  is  that  the  South  would  be  permitted,  under 
the  proposition  of  April  30,  to  extend  the  suffrage  gradually 
to  the  negroes,  and  to  get  representation  for  those  enfran- 
chised. The  difference  was  largely  one  of  theory  and  prin- 
ciple, however,  since  all  the  negroes  were  practically  in  the 
same  condition  and  the  effect  of  both  measures  would  be 
the  same  to  all  practical  purposes.  The  change  in  the  form 
of  the  measure  would  be  more  acceptable  to  those  who  de- 
manded that  the  same  rule  should  apply  to  all  sections. 

One  of  the  objections  of  the  extreme  Radicals  to  the 

•*Ibid.,  p.  33. 


Fourteenth  Amendment  Before   Congress.        1 1 5 

resolution  which  passed  the  House  January  31  was  that  it 
permitted  the  States  to  disfranchise  on  account  of  race  or 
color,  a  principle  which  they  declared  they  would  never  vote 
to  engraft  upon  our  Constitution,  It  must  be  said  that  this 
view  of  the  resolution  was  rather  far-fetched,  since  it  cer- 
tainly never  recognized  any  principle  or  power  which  was 
not  already  in  the  Constitution  or  which  had  not  always  been 
exercised  by  the  States.  The  change  in  the  form  of  the 
resolution  was  no  doubt  made  to  meet  the  objections  of  such 
Radicals,  however,  since  their  votes  were  necessary  in  the 
Senate.  The  change  in  the  resolution  also  met  the  objec- 
tions of  the  men  from  the  border  State  of  Missouri  where 
the  Confederate  soldiers  had  been  disfranchised.  The  reso- 
lution as  presented  was  so  framed  as  to  be  as  little  objec- 
tionable as  possible  to  the  North,  since  it  would  not  deprive 
that  section  of  its  representation  for  foreigners  nor  would 
the  New  England  States  lose  anything  on  account  of  their 
greater  number  of  women,  while  it  at  the  same  time  prac- 
tically made  voters  the  basis  of  representation  in  the  South. 
The  criticism  of  Senator  Henderson  when  the  other  reso- 
lution was  before  the  Senate  is  equally  applicable  to  this 
one.  It  is  objectionable  in  that  in  theory  it  bases  represen- 
tation neither  on  population  nor  on  voters,  but  a  mingling 
of  both,  though  its  effect,  if  the  opportunity  had  been  pre- 
sented and  the  intention  of  the  framers  carried  out,  would 
have  been  practically  to  base  representation  on  voters  in 
some  States  and  on  population  in  others.  For  example, 
Missouri  could  disfranchise  all  who  aided  the  South  during 
the  war  and  the  Northern  and  Western  States  might  dis- 
franchise all  foreigners  who  had  not  been  naturalized  with- 
out any  loss  of  representation,  but  the  South  could  not  dis- 
franchise the  negroes  on  account  of  race  or  color  or  by  an 
educational  qualification  which  applied  to  all  alike  without 
having  its  representation  reduced  proportionally.  The  reg- 
ulation of  the  suffrage  was  left  to  the  States,  as  had  always 


Ii6        Adoption   of   the  Fourteenth  Amendment. 

been  the  case,  but  with  such  a  limitation  upon  it  that  few 
States  would  exercise  it  to  any  great  extent,  since  the  pen- 
alty was  so  severe  as  to  prevent  it. 

The  resolution  did  not  come  up  for  discussion  until  May 
8,  when  Mr.  Stevens,  who  opened  the  debate,  declared  that 
the  second  section,  the  one  now  under  consideration,  was 
the  most  important  section  in  the  proposed  Amendment, 
since  it  could  compel  the  States  to  grant  universal  suffrage. 
He  admitted  that  the  prejudice  in  the  South  against  the 
negro  might  prevent  that  section  from  granting  the  suffrage 
for  some  years,  but  that  the  fact  that  that  section  would 
have  only  thirty-seven  Representatives  in  the  House  if  the 
ballot  were  not  given  to  the  negro  would  soon  force  them 
to  grant  it.  The  delay,  however,  would  not  be  injurious, 
in  his  opinion,  since  it  would  give  Congress  time  to  enact 
such  legislation  or  propose  further  Amendments  if  needed. 
Furthermore,  he  thought  that  the  negroes  would  be  more 
capable  of  exercising  the  ballot  at  the  end  of  five  years. 
Mr.  Stevens  admitted  that  he  preferred  the  resolution  which 
had  been  defeated  in  the  Senate.®" 

The  minority  characterized  the  section  as  sectional  and 
partisan,  its  object  being  to  postpone  the  restoration  of  the^ 
Union  and  to  perpetuate  the  party  in  power.^®  Mr.  Gar- 
field, though  preferring  an  out  and  out  declaration  for  uni- 
versal suffrage,  thought  that  the  section  was  free  from  the 
objection  which  defeated  the  former  resolution  in  the  Sen- 
ate.®^ Mr.  Thayer  advocated  the  proposition  on  the  ground 
that  the  South  would  receive  thirteen  additional  Represen- 
tatives by  the  abolition  of  slavery.®^  His  remarks,  as  well 
as  those  of  many  of  the  speakers,  would  indicate  that  the 
section  was  intended  to  apply  to  the  South  only.  The  re- 
mark of  Mr.  Boyer,  in  the  course  of  the  debate,  that  the 


•°  Cong.  Globe,  39th  Cong.,  ist  Sess.,  p.  2459. 

Ibid.,  p.  2461. 
■"Ibid.,  p.  2463. 
"Ibid.,  p.  2464. 


Fourteenth  Amendment  Before   Congress.        117 

design  of  the  Committee  was  to  solve  the  problem  "how 
not  to  do  it,"  tersely  expressed  what  many  thought  to  be  the 
real  status  of  affairs  at  the  Capitol.  His  remark  had  ref- 
erence to  the  problem  of  preventing  the  restoration  of  the 
Southern  States  until  after  the  presidential  election,  and  he 
was  of  the  opinion  that  the  Committee  had  met  with  re- 
markable success.  Mr.  Boyer  did  not  deny  that  the  basis 
of  representation  needed  changing,  but  he  thought  all  the 
States  should  participate  in  it,  and  that  since  reform  was 
undertaken,  it  should  be  impartially  carried  out;  if  the 
present  system  of  apportioning  Representatives  gave  the 
South  undue  weight  in  the  House,  it  also  gave  a  still  greater 
disproportion  of  power  to  the  New  England  States  in  the 
Senate,  for  that  section,  with  a  less  population,  had  12 
Senators  while  New  York  had  only  2.®^ 

The  argument  of  Mr.  Kelley,  of  Pennsylvania,  an  able 
Representative,  was  that  one  red-handed  rebel  in  South 
Carolina  ought  not  to  have  equal  power  with  three  patriotic, 
loyal  citizens  of  the  North.^*"'  Mr.  Boutwell,  a  member  of 
the  Reconstruction  Committee,  declared  that  he  did  not 
think  that  two  rebel  soldiers  "  whose  hands  were  dripping 
with  the  blood  "  of  Union  men  should  have  the  same  power 
in  Congress  as  three  Union  soldiers.^"^  The  same  senti- 
ment was  also  voiced  by  Mr.  Eckley  and  others,^"-  Such 
arguments,  arguments  which  would  now  have  little  or  no 
weight,  had  great  influence  at  the  time,  it  must  be  said  with 
regret.  Mr.  Raymond,  a  Johnson  Republican,  opposed  the 
January  resolution,  but  supported  the  second  section  as  now 
before  the  House,  believing  that  it  was  more  just  and  in 
better  form.^"^     Mr.  McKee  candidly  acknowledged  that  he 

"  Ibid.,  p.  2466. 
""Ibid.,  p.  2468. 
"'Ibid.,  p.  2508. 
^"'Ibid.,  p.  2535. 
""  Ibid.,  p.  2502. 


ii8        Adoption   of   the  Fourteenth  Amendment. 

supported  the  measure  in  order  to  perpetuate  his  poHtical 
party/*'*  but  this  was  of  course  an  unusual  admission. 

Mr.  Miller,  of  Pennsylvania,  regarded  the  second  section 
as  the  most  important  section  of  the  proposed  Amendment, 
declaring  that  it  was  the  "  corner-stone  of  the  stability  of 
our  Government."^"^  The  time  was  opportune  for  securing 
amendments  to  the  Constitution,  he  continued,  since  there 
were  large  majorities  in  both  branches  of  Congress ;  he 
furthermore  hoped  that  the  Governors  of  the  States  whose 
Legislatures  had  adjourned  would  convene  them  as  soon  as 
the  Amendment  was  passed  by  Congress,  thus  preventing 
its  submission  to  the  people, 

Mr.  Stevens  closed  the  debate,  though  he  made  no  refer- 
ence at  all  to  the  second  section.  The  measure  was  then 
passed.  May  lo,  1866,  by  a  vote  of  128  to  37.^°® 

The  resolution  was  not  considered  in  the  Senate  until 
May  23.  There  seems  to  be  no  reason  for  this  delay  except 
that  Senator  Fessenden,  the  Chairman  of  the  Reconstruction 
Committee,  was  too  unwell  to  take  charge  of  it.  When  it 
was  brought  before  the  Senate,  Mr.  Howard  opened  the 
discussion  and  took  general  charge  of  the  debate,  since  Mr. 
Fessenden's  health  was  such  as  to  prevent  him  from  doing 
so.  Mr.  Howard,  who  was  also  a  member  of  the  Recon- 
struction Committee,  seems  to  have  been  well  qualified  to 
act  as  Mr.  Fessenden's  substitute,  though  he  was  more  rad- 
ical than  Mr.  Fessenden.  He  admitted  that  the  second  sec- 
tion was  not  all  that  he  desired,  thinking  that  suffrage 
should  be  secured  to  some  extent  at  least  to  the  negroes. 
According  to  him,  the  question  of  suffrage  was  left  with  the 
States.  The  reason  for  this  was  that  it  was  unlikely  that 
three  fourths  of  the  States  could  be  induced  to  ratify  an 
Amendment  which  granted  the  right  of  suffrage,  m  any 
degree   or   under   any   restrictions,   to   the   negroes.     The 

;»*Ibid.,  p.  2535. 
'"Ibid.,  p.  2510. 
^"•Ibid.,  p.  2545. 


Fourteenth  Amendment  Before   Congress.        1 19 

Amendment  was  to  apply  to  all  the  States,  but  he  admitted 
that  it  was  so  drawn  as  to  make  it  the  political  interest  of 
the  South  to  extend  the  suffrage  to  negroes,  otherwise  los- 
ing twenty-four  Representatives  in  Congress.  To  his  mind 
it  was  unfair  and  unjust  that  the  Southern  States  should 
come  back  into  the  Union  stronger  by  ten  Representatives 
than  when  they  withdrew  in  1861/°^ 

Mr.  Wilson,  of  Massachusetts,  submitted  the  following 
in  lieu  of  the  second  section : 

"  Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  but  if  in  any 
State  the  elective  franchise  is  or  shall  be  denied  to  any  of 
its  inhabitants,  being  male  citizens  of  the  United  States, 
above  the  age  of  twenty-one  years,  for  any  cause  except 
insurrection  or  rebellion  against  the  United  States,  the  basis 
of  representation  in  such  States  shall  be  reduced  in  the  pro- 
portion which  the  number  of  male  citizens  so  excluded  shall 
bear  to  the  whole  number  of  male  citizens  over  twenty-one 
years  of  age."  Mr.  Wilson  regarded  the  distinction  be- 
tween "  citizens  of  the  State  "  and  "  inhabitants,  being  citi- 
zens of  the  United  States,"  as  a  vital  one,^°*  and  this  was 
the  only  real  difference  between  the  original  section  and  the 
one  he  submitted.  His  suggestion  was  afterwards  incor- 
porated into  that  section,  and  for  what  purpose  we  will  here- 
after consider. 

Mr.  Stewart  took  the  position  that  the  section  could  be 
justified  on  no  other  theory  than  that  the  negro  should  be 
allowed  to  vote  and  that  this  theory  must  be  vindicated 
before  the  people,  since  it  did  not  exclude  the  non- voting 
population  of  the  North.  The  section,  he  declared,  recog- 
nized that  there  was  no  wrong  in  excluding  aliens  and 
others  from  the  suffrage,  while  at  the  same  time  declaring 
that  if  suffrage  was  denied  to  the  negro,  he  would  not  be 
included  in  the  basis  of  representation.     It  was  perfectly 

""  Ibid.,  pp.  2766-67. 
""  Ibid.,  p.  2770. 


I20       Adoption   of   the  Fourteenth  Amendment. 

proper,  therefore,  for  him  to  ask  "Why  this  inequality? 
Why  this  injustice?"  He  asserted,  furthermore,  that  the 
world  would  brand  their  efforts  as  a  struggle  for  partisan 
power  if  they  relied  too  much  on  expediency. ^'>" 

On  the  same  day.  May  24,  Mr.  Sherman  proposed  an 
amendment  to  strike  out  sections  three  and  four  and  to 
insert  in  their  stead  a  section  basing  representation  on  the 
qualified  voters  in  each  State,  including  those  disfranchised 
on  account  of  rebellion;  and  a  section  to  the  effect  that 
direct  taxes  should  be  apportioned  among  the  several  States 
according  to  the  taxable  property  in  each  State.^^" 

Mr.  Sherman  proposed  his  amendment  on  May  24,  but 
the  resolution  was  not  considered  again  until  May  29.  The 
intervening  time  was  not  idly  used,  however,  since  the  Sen- 
ate remained  in  session  but  a  short  time  on  the  two  days, 
Friday  and  Monday,  in  which  it  was  in  session,  in  order 
to  give  the  Republicans  an  opportunity  to  discuss  the  whole 
measure  in  caucus.^^^  The  several  propositions,  by  way  of 
substitutes  or  amendments,  had  made  it  evident  that  there 
was  danger  that  the  entire  resolution  might  again  be  de- 
feated or  so  radically  altered  as  to  render  it  valueless  in  the 
eyes  of  the  party  leaders  or  subject  it  to  an  almost  certain 
rejection  by  the  States.  The  latter  event  was  especially  to 
be  avoided,  since,  if  a  proposition  which  the  people  disap- 
proved were  submitted,  the  reaction  might  be  so  great  as 
to  involve  the  loss  of  the  control  of  the  next  House  by 
the  Radicals.  Consequently  it  was  decided  to  defer  further 
debate  or  action  in  the  Senate  until  a  definite  programme 
had  been  decided  upon  by  the  majority.  Unity  of  action 
was  necessary  if  anything  was  to  be  accomplished,  and  it 
was  soon  perceived  that  so  many  objections  had  been  or 
would  be  raised  as  to  endanger  its  passage  by  the  Senate 
or  its  ratification  by  the  States. 

"'  Ibid.,  pp.  2800-03. 

"'  Ibid.,  p.  2804. 

""  N.  Y.  Herald,  May  26,  1866. 


Fourteenth  Amendment  Before   Congress.        121 

A  party  caucus  was  called,  therefore,  to  decide  just  what 
changes,  if  any,  were  to  be  made  in  the  plan  as  submitted 
by  the  Committee  of  Fifteen.  It  would  be  both  interesting 
and  valuable  to  know  what  took  place  in  the  caucus,  for  no 
doubt  there  was  a  free  expression  as  to  what  was  to  be 
accomplished  by  the  proposed  Amendment,  since  the  meet- 
ing was  behind  closed  doors  and  only  those  Republicans 
being  present  who  were  pledged  to  abide  by  the  action  of 
the  caucus.  Party  caucuses  had  been  held  before  this  time, 
but  never  before  had  such  policy  been  pursued,  either  in 
framing  or  amending  the  Constitution.  It  is  possible,  by 
such  methods,  to  amend  the  Constitution  by  an  actual  min- 
ority of  Congress  instead  of  the  two  thirds  which  is  re- 
quired by  the  Constitution,  since  a  majority  of  the  two 
thirds  can  bind  the  others.  In  this  way  an  amendment 
might  be  submitted  by  Congress  which  a  majority  of  its  own 
members,  if  acting  and  voting  independently,  might  disap- 
prove. This  was  very  probably  true  of  the  second  section, 
for  there  seems  to  be  evidence  to  show  that  a  majority  of 
the  Senators  preferred  a  measure  basing  representation  on 
voters.  It  is  unnecessary  to  remark  that  no  purely  party 
measure  should  ever  find  a  place  in  a  Constitution. 

Mr.  Barnes,  a  contemporary  writer,  says  of  this  caucus: 
"  The  several  days  during  which  the  discussion  was  sus- 
pended in  the  Senate  were  not  fruitless  in  their  eflFect  upon 
the  pending  measure.  The  Amendment  was  carefully  con- 
sidered by  the  majority  in  special  meetings,  when  such 
amendations  and  improvements  were  agreed  upon  as  would 
harmonize  the  action  of  the  Republicans  in  the  Senate." 

The  Republican  party  consisted  of  two  divisions  of  fac- 
tions— the  extreme  Radicals  like  Sumner,  Wade,  and  Yates, 
and  the  conservative  Radicals  like  Fessenden,  Trumbull, 
and  Morgan.  It  was  necessary  to  harmonize  these  two  fac- 
tions if  anything  was  to  be  accomplished  in  the  way  of 


122        Adoption   of  the  Fourteenth  Amendment. 

amending  the  Constitution.  This  condition  may,  to  some 
extent,  justify  the  caucus,  but  approval  should  seldom,  if 
ever,  be  given  to  a  party  caucus  upon  which  such  an  im- 
portant thing  as  changing  the  fundamental  law  depends. 

When  the  Amendment  was  again  before  the  Senate,  May 
29,  certain  amendments  were  made  as  the  Result  of  the  cau- 
cus. The  second  section  was  amended  by  striking  out 
"  citizens "  and  inserting'  "  inhabitants,  being  citizens  of 
the  United  States."  This  was  the  amendment  which  had 
been  submitted  by  Mr.  Wilson  a  few  days  before.  Mr. 
Howard  stated  that  the  change  was  made  in  order  to  har- 
monize sections  one  and  two,  but  it  was  evidently  done  to 
make  sure  that  the  Southern  States  could  not  evade  the 
measure  by  holding  that  negroes  were  not  citizens  of  the 
several  States  even  if  declared  to  be  citizens  of  the  United 
States.  The  amendment  was  agreed  to  without  a  divi- 
sion.^^^ 

Mr.  Hendricks  pointed  out  the  fact  that  the  section  did 
not  rest  upon  the  principle  that  those  who  were  regarded  as 
unfit  to  vote  by  the  States  should  not  be  represented,  as  had 
been  claimed  by  the  advocates  of  the  measure,  since  it  was 
so  framed  as  to  permit  the  Northern  and  Eastern  States 
to  retain  their  twenty  Representatives  based  upon  a  non- 
voting population.  It  also  permitted  Maryland,  West  Vir- 
ginia, Tennessee,  and  Missouri  to  have  representation  for 
those  they  regarded  as  unfit  to  vote.  His  amendment,  how- 
ever, was  rejected.^^* 

A  favorite  argument  with  the  majority  was  that  the 
South  would  come  back  with  increased  power  if  the  basis 
remained  unchanged.  To  test  the  sincerity  of  that  argu- 
ment, Mr.  Hendricks  proposed  an  amendment  to  the  section 
providing  that  only  three  fifths  of  those  who  had  been 
released  from  servitude  should  be  counted  in  the  basis,  thus 


'Cong.  Globe,  39th  Cong.,  ist  Sess.,  p.  2897. 
Ibid.,  p.  2939. 


Fourteenth  Amendment  Before   Congress.        123 

restoring  the  status  quo  in  regard  to  representation  as  it 
existed  prior  to  the  war,  but  this  was  not  accepted.^^* 

Mr.  DooHttle  moved  as  a  substitute  for  the  section  an 
amendment  identical  in  meaning  to  that  proposed  by  Mr. 
Sherman  on  May  24,  that  is,  basing  representation  on  male 
electors  over  21  years  of  age.  He  discussed  his  amendment 
at  length,  showing  that  New  England  would  lose  4  while 
the  Northwest  would  gain  12  Representatives.  If  suffrage 
laws  remained  unchanged,  the  South  would  lose  15  and  the 
North  would  gain  15  Representatives  on  a  voting  basis,  but 
the  amendment  was  rejected  by  a  vote  of  31  to  7.^^°  An 
objection  brought  against  Mr.  Doolittle's  amendment  was 
that  it  would  tend  to  degrade  suffrage  by  inducing  the 
States  to  grant  the  privilege  to  aliens  and  others.  To  test 
the  sense  of  the  Senate  and  to  avoid  that  objection,  he  sub- 
mitted another  amendment  in  which  "  male  citizens  "  who 
were  qualified  by  state  law  to  vote  for  members  of  the  most 
numerous  branch  of  the  Legislature  was  substituted  for 
"  male  electors,"  but  this  was  defeated  by  the  same  vote, 
31  to  7."« 

Mr.  Poland  thought  that  population,  not  voters,  should 
constitute  the  basis  of  representation,  though  he  was  op- 
posed to  having  the  negroes  included  in  the  basis  unless  they 
were  allowed  to  vote.  In  case  suffrage  was  granted  to 
them,  there  would  be  some  Republicans  from  the  South, 
thus  insuring  the  continued  dominance  of  his  party,  he 
declared,  and  that  there  would  be  no  reasonable  fear  of 
losing  control  of  the  Government  if  the  ballot  was  not  put 
in  the  hands  of  the  negro  and  the  South's  representation 
reduced  accordingly. 

The  rejection  of  the  amendments  submitted  by  Mr.  Doo- 
Httle clearly  brought  out  the  fact  that  the  Republicans  were 
bound  by  the  caucus.     Mr.  Sherman  did  not  hesitate  to 


"*  Ibid.,  pp.  2940  and  2942. 
"*Ibid.,  pp.  2942-44  and  2986. 


"'Ibid.,  p.  2991 


124        Adoption   of   the  Fourteenth  Amendment. 

express  his  opinion  in  favor  of  Mr.  Doolittle's  amendment, 
holding  that  it  embodied  the  true  principle  upon  which  rep- 
resentation should  be  based,  and  that  if  it  were  adopted,  the 
South  would  feel  no  local  jealousy,  since  it  would  apply 
to  all  sections  alike.  "  Then  every  citizen,"  he  continued, 
"  would  stand  equal  before  the  law,  with  precisely  the  same 
political  power,  no  more  and  no  less.  I  say,  therefore,  that 
this  is  the  only  amendment  to  the  propositions  now  sub- 
mitted to  us  that  I  desire  to  make ;  but  I  feel  bound  by  the 
action  of  my  political  friends  to  vote  against  this  amend- 
ment. I  place  my  vote  distinctly  on  this  ground."  For 
political  reasons,  therefore,  he  voted  for  a  proposition  which 
he  knew  to  be  unfair  and  unjust,  for  he  said  of  it :  "It 
endeavors  to  save  representation  for  certain  portions  of  our 
country  where  they  have  a  population  whom  they  deprive 
of  the  right  to  vote;  but  it  deprives  the  South  of  represen- 
tation for  a  population  which  has  no  right  to  vote.""^ 

Mr.  Wilson,  of  Massachusetts,  in  reply  to  Mr.  Sherman's 
remarks,  stated,  as  his  reason  for  opposing  the  amendment 
offered  by  Mr.  Doolittle,  that  it  would  strike  over  2,000,000 
unnaturalized  foreigners  from  the  basis,  thus  diminishing 
the  representation  of  the  loyal  States  17  and  correspond- 
ingly increasing  the  power  of  the  disloyal  States.  This 
statement  by  Mr.  Wilson  reveals,  if  we  were  otherwise 
lacking  in  information,  the  main  purpose  of  the  section,  for 
it  will  be  remembered  that  it  was  Mr.  Wilson  who  sug- 
gested the  change  in  the  form  of  the  section  which  was 
finally  adopted.  Mr.  Sherman  had  no  difficulty  in  answer- 
ing Mr.  Wilson's  argument  by  saying  that  if  4,000,000 
blacks  were  denied  representation  because  they  were  not 
allowed  to  vote,  then  all  other  classes  which  were  denied 
the  right  of  suffrage  should  also  be  denied  representation.^^* 
His  position  was  that  an  Amendment  to  the  Constitution 

"'Ibid.,  p.  2986.  " 

"*  Ibid.,  p.  2987. 


Fourteenth  Amendment  Before   Congress.        125 

should  rest  upon  some  fundamental  principle,  and  not  upon 
how  it  would  affect  this  or  that  community  or  section,  but 
how  it  would  affect  the  country  at  large. 

Mr.  Henderson  thought  the  section  was  objectionable  in 
that  it  inflicted  a  punishment  upon  the  States  for  excluding 
negroes  from  the  suffrage,  while  at  the  same  time  permit- 
ting white  citizens  and  alien  inhabitants  to  be  excluded 
without  loss  of  representative  power.  He  was  also  of  the 
opinion  that  it  offered  too  great  an  incentive  to  the  States 
to  extend  the  elective  franchise  to  those  incompetent  to 
exercise  it  intelligently.  Notwithstanding  these  and  other 
objections,  Mr.  Henderson  voted  for  the  measure.^^* 

Mr.  Doolittle,  a  short  time  before  the  final  vote  was  to 
be  taken,  presented  an  amendment,  of  which  he  had  given 
notice,  providing  that  each  of  the  sections  be  submitted  to 
the  States  as  separate  Amendments,  any  one  or  all  of  which 
might  be  adopted  or  rejected  by  the  States.  He  cited  the 
fact  that  when  Amendments  were  first  submitted  to  the 
States,  the  policy  of  submitting  them  as  separate  Amend- 
ments was  inaugurated  and  that  it  should  not  now  be  de- 
parted from.  At  that  time  twelve  Amendments  were  sub- 
mitted, of  which  ten  were  adopted  and  two  rejected.  The 
sections  of  the  proposed  Amendment  were  distinct  and  inde- 
pendent propositions,  he  contended,  and  should,  therefore, 
be  submitted  as  such.  It  has  already  been  noted  in  the  pre- 
ceding pages  that  Mr.  Stevens  had  at  first  opposed  uniting 
the  various  propositions  and  that  the  Committee,  by  a  vote 
of  10  to  4,  had  also  placed  itself  on  record  against  such  a 
course.  His  amendment  was  rejected  by  a  vote  of  33  to 
II.""  No  reason  was  given  for  the  action  of  the  majority, 
but  it  takes  very  little  discernment  to  discover  it. 

Mr.  Sherman  asked  that  the  sections  be  voted  on  sepa- 
rately in  the  Senate,  though  he  had  voted  a  few  minutes 

"» Ibid.,  pp.  3033-35. 
Ibid.,  p.  3040. 


126        Adoption   of   the  Fourteenth  Amendment. 

before  against  the  proposition  of  Mr.  Doolittle  to  allow  the 
States  the  same  privilege,  but  his  request  was  denied  on  the 
ground  that  all  the  sections  constituted  but  one  resolution 
and  must  be  voted  on  as  such.^^^  The  resolution  proposing 
the  Fourteenth  Amendment  was  passed  by  a  vote  of  33 
to  1 1. "2 

The  resolution  as  amended  in  the  Senate  was  brought 
before  the  House  on  June  13,  when  Mr.  Stevens  announced 
that  the  Union  part  of  the  Committee  of  Fifteen  had  exam- 
ined the  amendments  made  in  the  Senate  and  were  unani- 
mously of  the  opinion  that  they  should  be  adopted.  These 
amendments  were  concurred  in  the  same  day  by  a  vote  of 
20  to  32.^^* 

From  the  above  examination  of  the  discussion  of  the  sec- 
ond section,  it  is  quite  obvious  that  its  chief  purpose  was  to 
weaken  the  power  of  the  South,  and  so  of  the  Democratic 
party,  and  to  keep  the  Republican  party  in  power.  It  is 
also  equally  evident  that  it  was  not  based  upon  any  funda- 
mental principle,  and  this  was  not  only  recognized  but  stated 
by  some  of  those  who  voted  for  it.  The  one  distinctive 
principle,  that  basing  representation  on  legal  male  electors, 
was  rejected./  This  would  have  affected  the  South  to  a  far 
greater  extpifit  than  any  other  section  of  the  country,  but  it 
could  not  have  been  attacked  on  the  ground  of  unfairness 
and  of  sectionalism.  Party  expediency  was  the  determin- 
ing factor,  however,  and  for  the  first  time  in  the  history 
of  our  country  there  was  engrafted  upon  the  Constitution 
a  purely  partisan  proposition,  a  proposition  to  perpetuate^  a 
poUtical  party.  / 

The  section  was  obnoxious  in  that  it  permitted  the  alien 
to  be  represented  and  denied  that  right  to  the  negro.  In 
this  respect  the  alien  was  given  preference  over  the  citizen, 
though  it  might  be  answered  that  the  alien  would  become  a 


;^Ibid.,  p.  3041. 

Ibid.,  p.  3042. 

"^  Ibid.,  p.  3149. 


Fourteenth  Amendment  Before   Congress.        127 

citizen,  when,  if  not  granted  suffrage,  he  would  no  longer 
be  represented.  The  principle  that  those  classes  which  had 
not  the  right  of  suffrage  should  not  be  represented,  the 
principle  upon  which  the  section  pretended  to  be  based, 
was  violated  nevertheless.  Even  the  answer  given  above 
does  not  apply  to  the  case  of  the  Chinese,  for  here  were 
aliens  who  were  not  expected  to  become  citizens  and  could 
not  become  such  under  the  laws  of  the  United  States,  and 
yet  under  the  section  they  would  be  represented. 


/, 


Section  Three  of  the  Amendment. 
The  third  section  may  be  called  the  punitive  section  of 
the  Amendment,  for  by  it  the  leading  men  of  the  South  were 
prevented  from  holding  office,  either  federal  or  state.  In 
this  way  it  was  hoped  to  weaken,  if  not  to  destroy,  the  in- 
fluence of  those  who  had  shaped  the  policies  of  the  South 
up  to  this  time.  The  section  was  also  to  serve  a  political 
purpose,  being  a  concession  to  those  who  desired  to  see  the 
Southern  leaders  punished,yAs  an  indication  of  the 
animosity  held  by  many  toward  the  South,  the  resolution 
submitted  by  Mr,  Sumner  on  the  first  day  of  the  session, 
December  4,  1865,  may  be  cited.  The  fifth  proposition  of 
the  resolution,  which  .was  in  reference  to  the  restoration  of 
the  Southern  States,  is  as  follows :  "  The  choice  of  citizens 
for  office,  whether  state  or  national,  of  constant  and  un- 
doubted loyalty,  whose  conduct  and  conversation  shall  give 
assurance  of  peace  and  reconciliation,"^^*  The  accept- 
ance of  this  proposition  would  mean  the  exclusion  of  all  who 
aided  the  South,  On  the  20th  of  December,  1865,  Mr. 
Broomall  submitted  a  resolution  to  be  referred  to  the  Re- 
construction Committee,  a  part  of  the  sixth  section  of  which 
provided  "  and  forever  exclude  from  all  political  power  the 
active  and  willing  participants  in  the  late  usurpation,"^^' 
With  the  same  purpose  in  view,  Mr,  Spalding,  in  a  speech, 
January  5,  1866,  suggested  that  a  measure  should  be  adopted 

"*Ibid.,  p.  2. 
""Ibid.,  p.  98. 


/b 


128        Adoption   of  the  Fourteenth  Amendment. 

to  prevent  anyone  who  had  taken  up  arms  against  the  United 
States  from  being  admitted  to  a  seat  in  Congress.  Mr. 
ConkHng  submitted  a  resolution  to  this  effect  on  January 
16,  1866.126 

'The  resolutions,  which  were  generally    referred    to  the 

Reconstruction  Committee,  and  the  remarks  made  in  debate, 

/•     go  to  show  that  there  was  a  feeling  on  the  part  of  many 

/'      that  the  participants  in  the  hostilities  against  the  Federal 

I        Government  should  be  denied  political  rights  for  some  time 

!        at  least.     The  reasons  given  were  that  treason  was  a  crime 

(        and  should  be  made  odious,  and  that  it  would  be  unsafe  to 

trust  the  Government  in  the  hands  of  those  who  had  waged 

war  against  it.     It  must  also  be  remembered  that  there  was 

i    a  political  aspect  to  these  resolutions,  for  it  can  readily  be 

perceived  that  if  a  large  number  of  those  in  the  South  were 

.     disfranchised,  it  would  make  it  much  easier  for  the  party 

Vin  power  to  continue  in  control  of  the  Government. 

The  Reconstruction  Committee  seemed  in  no  great  haste, 
however,  in  regard  to  this  particular  phase  of  reconstruc- 
tion, for  it  was  not  until  April  28,  1866,  just  two  days  be- 
fore the  proposed  plan  was  reported  from  that  Committee, 
that  Mr.  Boutwell  submitted  a  proposition  almost  identical 
with  the  third  section  as  finally  adopted.  His  proposition 
was  rejected  by  a  vote  of  8  to  6.  Mr.  Harris  then  moved 
to  insert  after  section  two  the  following :  "  Sec.  — .  Until 
the  4th  day  of  July,  in  the  year  1870,  all  persons  who  volun- 
tarily adhered  to  the  late  insurrection,  giving  it  aid  and  com- 
i  fort,  shall  be  excluded  from  the  right  to  vote  for  Represen- 
I  tatives  in  Congress  and  for  electors  for  President  and  Vice- 
\^  President  of  the  United  States."  This  proposition  was  re- 
jected at  first  by  a  vote  of  8  to  7,  but  was  subsequently 
reconsidered  and  adopted  by  8  to  7 — Mr.  Grimes  having 
changed  his  vote.^^^  This  is  the  only  reference  to  the  third 
section  in  the  Journal  of  the  Committee,  and  it  was  re- 
ported in  the  form  given  above  on  April  30.  On  the  same 
date,  Mr.  Stevens  reported  two  bills  from  the  ReconstructioiT 

"•Ibid.,  pp.  133  and  252. 

"'Reconstruction  Committee  Journal,  p.  34. 


Fourteenth  Amendment  Before   Congress.        129 

Committee,  one  of  which  declared  certain  classes  of  persons 
ineligible  to  office. 

During  the  debate  on  the  resolution  proposing  the  Four- 
teenth Amendment,  it  developed  that  there  was  considerable 
opposition  to  the  third  section.  Mr.  Blaine  thought  that  it 
would  override  the  pardons  granted  by  the  President,  thereby 
subjecting  the  Federal  Government  to  the  charge  of  bad 
faith.  Mr.  Stevens  replied  that  a  pardon  would  release  any 
one  from  the  penalty,  whereupon  ]\Ir.  Blaine  observed  that 
the  section  would  become  practically  useless  since  all  below 
the  rank  of  Colonel  had  already  been  pardoned,  and  that  at 
the  proper  time  he  would  move  to  strike  out  the  third  sec- 
tion."* Mr.  Garfield  said  that  the  section  was  obnoxious  in 
that  it  was  susceptible  of  a  double  construction  and  not 
founded  on  a  principle.  He  further  asserted  that  it  would 
be  regarded  everywhere  as  a  piece  of  politics  for  the  pur- 
pose of  carrying  the  presidential  election,  and  moved  that 
the  resolution  be  recommitted  to  the  Committee  with  in- 
structions to  strike  out  the  third  section.^-*  Mr.  Thayer, 
who  advocated , the  other  sections,  thought  the  third  section 
both  improper  and  inexpedient,  and  added :  "  I  am  opposed 
to  it  because  it  looks  to  me  like  offering  to  the  people  of  the 
States  lately  in  rebellion  peace  and  restoration  with  one  hand, 
while  you  snatch  it  from  them  with  the  other."^^"  Mr. 
Boyer  declared  that  the  section  furnished  convincing  evi- 
dence  that  the  Amendment  was  not  intended  for  adoption, 
but  was  to  serve  as  an  excuse  for  the  indefinite  exclusion 
of  Southern  Representatives,  since  the  South  could  not  be 
expected  to  accept  such  terms  as  those  contained  in  this 
section.  He  also  contended  that  it  was  in  the  nature  of  an 
ex  post  facto  law,  thereby  being  contrary  to  the  great  prin- 
ciple incorporated  in  the  Constitution.^^^  Mr.  Shanklin 
asserted  that  the  purpose  of  the  section  was  to  disfranchise 
the  people  of  the  South  until  the  party  in  power  could  so 

^^  Cong.  Globe,  39th  Cong.,  ist  Sess.,  p.  2460. 
^  Ibid.,  p.  2463. 
''» Ibid.,  p.  2465. 
"*  Ibid.,  p.  2466. 

9 


130       Adoption   of   the  Fourteenth  Amendment. 

hedge  themselves  in  as  to  be  able  to  control  that  section  at 
will,  and  that  if  the  Southern  people  accepted  the  degrading 
conditions  imposed  by  the  section,  they  would  be  unworthy 
to  be  American  citizens.^^^ 

Mr.  Raymond  opposed  the  section  on  the  ground  that  it 
rendered  his  party  obnoxious  to  the  charge  of  amending  the 
Constitution  for  the  purpose  of  controlling  the  election  of 
1868.  He  thought  Mr.  Blaine's  objection  a  very  strong  one, 
T)ut  to  his  mind,  the  fatal  objection  was  that  it  was  inserted 
for  the  express  purpose  of  preventing  the  Southern  States 
from  adopting  any  Amendments  submitted  by  Congress. 
The  result  would  be,  he  said,  to  keep  the  States  out,  since 
the  adoption  of  the  Amendment  was  to  be  the  condition 
precedent  to  their  re-admission.  The  concession  which  the 
States  of  the  South  would  be  called  upon  to  make  in  adopting 
the  Amendment  were  then  recited  by  Mr,  Raymond,  which 
concessions  were  an  equality  of  civil  rights,  a  great  reduction 
of  political  power  in  the  change  of  the  basis  of  representa- 
tion, the  repudiation  of  their  debts,  and  the  surrender  of  all 
claims  for  compensation  for  slaves.  After  summarizing 
these  concessions,  he  pertinently  asked :  "  What  do  we  offer 
them  in  return  for  all  these  concessions  ?  "  We  cannot  do 
better  than  give  his  own  answer,  which  was  in  these  ex- 
pressive words :  "  The  right  to  be  represented  on  this  floor, 
provided  they  will  also  consent  not  to  vote  for  the  men  who 
are  to  represent  them !  It  is  not  merely  a  sham,  it  is  a 
mockery."^^^  Notwithstanding  his  severe  arraignment  of 
this  section  and  his  belief  that  it  would  cause  the  defeat  of 
the  proposed  Amendment,  Mr.  Raymond  voted  for  the  entire 
resolution.  Many  Republicans  doubted^  the  _expedieucy_ox_ 
propriety  of  the  section,  especially  as_a_gart^^f  the  Four- 
teenth  Amendment,  and  suggested  that  it  be  submitted  as  j, 
separate  and  distinct  propositiom^^*  Several  of  the  majority 
leaders  thought  that  it  would  endanger  the  entire  Amend- 
ment, among  them  being  Mr.  Bingham,  who  also  stated  that 


'  Ibid.,  p.  2500. 
'Ibid.,  p.  2503. 
Ibid.,  pp.  250S-10. 


Fourteenth  Amendment  Before    Congress.        131 

it  might  subject  their  party  to  the  charge  of  inserting  it  for 
the  purpose  of  controlling  the  next  presidential  election.^^" 

Of  all  the  speakers,  Mr.  Stevens  was  the  only  one  who 
stated  that  he  regarded  the  third  section  as  the  most  im- 
portant and  vital,  and  that  it  was  necessary  to  save  the  Union 
party.  He  had  no  hesitancy  in  saying  that  it  was  a  party 
measure  pure  and  simple.  He  admitted,  however,  that  Con- 
gress would  have  to  pass  registry  laws  and  other  laws  to  en- 
force it,  just  as  would  have  to  be  done  in  regard  to  the  other 
sections.  This  is  probably  the  most  important  statement 
made  in  regard  to  the  third  section,  since  it  shows  very 
clearly  that  he  thought  congressional  legislation  was  neces- 
sary to  make  the  first  section  effective.  Before  closing  his 
speech  he  moved  the  previous  question,  but  Mr.  Garfield 
and  others  opposed  this  inotion  with  the  view  of  moving  to 
strike  out  the  third  section.  The  previous  question  was  sec- 
onded, however,  only  by  a  union  of  the  partisan  Democrats 
with  the  partisan  Republicans,  and  then  by  the  close  vote  of 
84  to  79.  The  entire  resolution  was  then  adopted  by  a  vote 
of  128  to  37."* 

When  the  resolution  was  under  discussion  in  the  Senate, 
May  23,  Mr,  Howard  stated  that  he  had  not  favored  this 
section  in  the  Committee.  The  Journal  of  the  Committee 
shows,  however,  that  he  voted  for  its  insertion  and  that  with- 
out his  vote  that  section  would  not  have  been  reported  to 
Congress.  In  fact,  it  was  only  included  after  some  pressure 
or  influence  had  induced  Mr.  Grimes  to  change  his  vote. 
Mr.  Howard's  objection  to  the  section,  as  disclosed  in  his 
speech,  was  that  it  would  be  of  no  practical  benefit  in  the 

.presidential  election,^^^  There  seemed  to  be  no  one  in  the 
Senate  to  advocate  the  section  as  it  passed  the  House,  and 

'the  Republican  caucus  decided  to  strike  it  out.  In  place. of 
the  deleted  section,  there  was  submitted  on  May  29,  a  sub- 
stitute in  the  form  of  the  present  third  section.  The  Senate, 
by  a  vote  of  43  to  o,  voted  to  strike  out  the  original  section^ 
The  change  was  no  doubt  made  for  the  purpose  of  strength- 

"'  Ibid.,  pp.  2540-43. 
"'  Ibid.,  p.  2545. 
^''  Ibid.,  p.  2768. 


132        Adoption   of   the  Fourteenth  Amendment. 

effing  the  Amendment  before  the  people.  Several  amend- 
ments were  offered  to  limit  the  effect  of  the  section  to  those 
who  had  taken  the  oath. to  support  the  Constitution  within 
the  ten  years  preceding  January  i,  1861,  to  those  who  had 
voluntarily  aided  the  Confederacy,  etc.,  but  all  were  rejected 
by  the  usual  Republican  majority .^^^  The  section  was  also 
characterized  as  ex  post  facto}^^  The  amendment  to  the 
third  section  as  made  in  the  committee  of  the  whole  was 
adopted  by  the  Senate  by  a  vote  of  42  to  i,^*°  since  it  was 
regarded  as  much  more  satisfactory  than  the  form  in  which 
it  had  passed  the  House. 

The  amendment  made  in  the  Senate  was  agreed  to  in  the 
House,  June  13,  by  a  vote  of  120  to  32.  Mr.  Finck  called 
attention  to  the  position  taken  by  Mr.  Stevens  when  an 
attempt  had  been  made  to  strike  out  the  third  section  in  the 
House,  and  his  present  position.^*^  It  will  be  recalled  that 
Mr.  Stevens  stated  that  he  regarded  the  third  section  as  the 
most  important  of  the  Amendment,  and  that  without  it,  it 
would  be  of  little  value. 

/  There  may  be  said  to  be  two  underlying  motives  which 
caused  the  insertion  of  the  third  section  in  the  Amendment — 
the  one  penal,  the  other  political.  Undoubtedly  it  was  to 
serve  as  a  punishment  for  the  Southern  leaders,  but  it  is 
equally  true  that  it  was  to  serve  a  political  purpose  as  well. 
The  chief  political  features  were  eliminated  in  the  Senate, 
for  some  of  the  leading  Republicans  admitted  that  it  was 
largely  political  in  the  form  in  which  it  came  from  the  Com- 
mittee and  was  adopted  by  the  House.  The  penal  features, 
however,  probably  bore  more  heavily  on  the  South  in  the 
amended  form,  since  it  prevented  those  most  capable  from 
holding  any  office.  As  was  repeatedly  charged  in  debate, 
the  chief  political  value  of  the  section  was  that  it  would 
prevent  the  acceptance  of  the  Amendment  until  after  the 
\      election.     Some  of  the  majority  were  also  of  the  opinion 


\ 


I  Ibid.,  pp.  2897,  2900  and  2918. 
'  Ibid.,  pp.  2915,  2940  and  2990. 

Ibid.,  p.  3042. 

Ibid.,  p.  3146,  3149. 


Fourteenth  Amendment  Before   Congress.        133 

that  the  entire  Amendment  would  be  endangered  by  it  and 
desired  to  have  it  submitted  as  a  separate  proposition. 

One  result  of  the  third  section  was  the  defeat  of  the  pro- 
posed Amendment  in  the  South,  though  to  be  sure  it  may 
be  questioned  whether  the  Southern  States  would  have 
adopted  it  with  this  section  omitted,  but  there  can  be  no 
doubt  that  it  caused  greater  irritation  and  opposition  than 
any  other  section.  There  was  probably  one  factor  in  con- 
nection with  this  section  which  was  not  mentioned  in  the 
debates,  and  this  was  the  fact  that  it  would  afford  the  op- 
portunity later  on  to  offer  an  inducement  to  the  Southern 
leaders — those  proscribed  by  the  section — in  the  way  of 
amnesty  as  a  return  for  aid  given  to  the  party  in  power. 
A  quid  pro  quo  agreement  of  this  kind  might  prove  effective 
at  times,  and  the  fact  that  attempts  were  made  to  reach  a 
compromise  along  these  lines,  the  granting  of  amnesty  to 
the  Southern  leaders  to  be  linked  with  the  so-called  Civil 
Rights  Bill  of  Sumner  gives  weight  to  this  view.  The  sec- 
tion as  originally  proposed  limited  the  time  to  four  years, 
but  as  passed  there  was  no  time  limit,  and  it  required  a  vote 
of  two  thirds  of  Congress  to  exempt  any  one  from  its  pro- 
visions. Although  the  section  did  not  apply  to  the  mass  of 
the  people,  it  could  hardly  be  expected  that  those  who  had 
followed  their  leaders  so  loyally  would  abandon  them  under 
the  circumstances.  The  section  was  impolitic  to  say  the 
least  of  it,  and  it  really  rhade  those  affected  by  it  more 
popular,  since  they  were  regarded  as  unjustly  singled  out 
to  bear  the  punishment  for  all  those  who  had  participated 
in  or  sympathized  with  the  struggle  for  Southern  inde- 
pendence. 

Section  Four  of  the  Amendment, 

The  fourth  section  of  the  Amendment  declaring  that  the 

pufelic  (iebt  of  the  United  States  should  be  inviolable,  but 

that  neither  the  United  States  nor  any  State  should  assume 

or.-Eaj  any  debt  incurred  by  the  Confederate  States  in  aid 


134        Adoption   of   the  Fourteenth  Amendment. 

of  the  war  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave,  aroused  the  least  opposi- 
tion of  any  of  the  sections.;  In  fact,  there  was  very  little 
opposition  to  the  section,  for  a  resolution  introduced  by  Mr. 
Randall,  of  Pennsylvania,  December  5,  1865,  declaring  that 
the  national  debt  should  be  held  sacred  and  inviolable,  was 
agreed  to  by  a  vote  of  162  to  i.^*^  Two  weeks  later,  De- 
cember 19,  a  resolution  proposing  an  Amendment  to  the 
Constitution  was  reported  from  the  Judiciary  Committee 
and  adopted  the  same  day  under  call  of  the  previous  ques- 
tion by  a  vote  of  150  to  11.^*^/  This  proposed  Amendment 
declared  that  neither  the  United  States  nor  any  State  should 
pay  any  debt  contracted  in  aid  of  war  against  the  United 
States,  and  the  above  vote  shows  that  there  was  a  general 
feeling  that  such  debts  should  not  be  paid.  The  resolution 
was  sent  to  the  Senate  the  following  day,  but  no  action 
whatever  was  taken  in  regard  to  it  until  June  20,  1866,  when 
it  was  indefinitely  postponed  on  the  ground  that  it  had 
been  incorporated  into  the  fourth  section  of  the  Fourteenth 

Amendment.  ^^^ ^1  -r-"^"^",         __  __    ^^      ^"v..,.,,^ 

The  number  of  resolutions  submitted  to  Congress  on  the 
subject  clearly  indicates  that  it  was  thought  advisable  to 
secure  the  national  debt  against  any  future  danger  and  to  / 
put  it  beyond  the  power  of  Congress  or  any  State  to  assume/ 
or  pay  any  part  of  the  Conjederate  debt  or  to  pay  for  any  of 
the  emancipated  slaves;'!'    The  provisions  in  regard  to  the 
Confederate  debt  and  the  compensation  for  slaves  were  per- 
fectly proper  to  prevent  action  by  any  future  Congress,  but 
the  provision  in  regard  to  the  national  debt  seems  of  doubt- 
ful value.     The  consideration  of  this  subject  was  at  first 
almost  entirely  free  from  politics,  but  it  was  made  to  serve 
the  politicians  at  a  later  stage.     Just  as  was  the  case  with - 
the  other  sections,  there  was  no  idea  of  combining  this  sec- 

'"  Ibid.,  p.  10. 
'"Ibid.,  pp.  84-87. 


Fourteenth  Amendment  Before   Congress.'       135 

tion  with  any  other  proposition  until  the  plan  of  Robert 

Dale  Owen  was  submitted  to  the  Reconstruction  Committee 

■■■ 

April  21,  1866. 

^  Very  little"  time  or  attention  was  given  to  this  section, 
being  hardly  mentioned  by  some,  never  alluded  to'b3^ Others, 
and  little  discussed  by  any.  Mr.  Stevens  probably  gave  the 
Republican  view  of  it  in  the  following  sentence,  which  was 
all  he  said  in  regard  to  it:  "I  need  say  nothing -of  the 
fourihsection,  for  none  dare  object  to  it  who  is  not  himself 
a  rebel.^'*"'  No  opposition  to  speak  of  was  manifested  by 
the  Democrats,  except  to  the  provision  in  regard  to  the  com- 
pensation for  slaves,  and  the  opposition  to  this  provision 
was  almost  entirely  limited  to  its  effect  upon  Maryland, 
Delaware,  Kentucky,  and  Missouri — States  which  had  re- 
mained loyal  to  the  Union.  JV|n  3^haxiklin,  jsf  Ker^^ 
declared  that  it  repudiated  the  pledge  of  the  National  Gov- 
ernment to  pay  $300  for  each  slave  enlisted  from  the  loyal 
States.  According  to  his  statement,  Kentucky  was  en- 
titled to  JiOjO(X)jPOQjir  Mr.  Randall,  who  was  several 
times  Speaker  when  the  Democrats  came  into  power,  said 
tiiat  if  this  section  were  submitted  as  a  separate  proposition 
that  it  would  be  adopted  almost  unanimously.^** y 
^  Mr.  Howard,  who  had  charge  of  the  Amendment  in  the 
Senate,  stated.  May  23,  when  it  was  under  discussion,  that 
he  did  not  suppose  there  was  any  one  in  that  body  who 
would  oppose  the  fourth  section.  He  said  it  was  necessary 
to  prevent  future  political  squabbling  and  wrangling  and  to 
put  it  beyond  the  field  of  discussion  and  to  avoid  all  agita- 
tion of  the  subject  in  the  future.^*^  Although  admitting  all 
were  in  favor  of  this  section,  he  was  unwilling  to  submit 
it  as  a  separate  proposition,  evidently  desiring  to  use  it  as 
a  means  to  strengthen  the  other  sections  or  to  secure  votes 

*"Ibid.,  p.  2460. 
""  Ibid.,  p.  2501. 
'*"  Ibid.,  p.  2530. 
"Mbid.,  p.  2768. 


136        Adoption   of   the  Fourteenth  Amendment. 

for  his  party,  thereby  being  made  political  to  that  extent. 

Mr.  Davis  offered  an  amendment  to  the  section  for  the 
purpose  of  securing  the  bounties  provided  to  the  owners  of 
slaves  who  enlisted,  but  this  was  rejected.^*^  The  only 
serious  objection  which  might  be  brought  against  the  sec- 
tion was  that  in  regard  to  this  part  of  it,  since  many  slaves 
of  those  who  were  loyal  to  the  Union  had  enlisted  under  the 
Act  of  Congress  of  February  29,  1864.  By  adopting  this 
section,  Congress  violated  its  plighted  faith,  but  aside  from 
this  the  section  probably  served  a  good  purpose  by  remov- 
ing all  agitation  in  the  future  in  regard  to  compensation  for 
slaves  or  the  payment  of  any  debts  contracted  in  aid  of  the 
Confederacy.  Of  course  this  statement  has  nothing  to  do 
with  the  question  whether,  as  a  matter  of  fact,  compensa- 
tion should  have  been  given  for  the  slaves  or  not,  though 
the  condition  of  the  public  finances  at  the  time  would  hardly 
have  warranted  the  assumption  of  such  an  enormous  obli- 
gation. 

Section  Five  of  the  Amendment. 
-.Section  five  declares  that  "  The  Congress  shall  have 
power  to  enforce,  by  appropriate  legislation,  the  provisions 
of  this  Article."  It  was  never  deemed  necessary  to  add  a 
section  similar  to  this  to  any  proposed  Amendment  to  the 
Constitution  prior  to  the  Thirteenth,  so  that  it  is  essential 
that  a  brief  account  be  given  of  the  reason  for  adding  it  to 
the  War  Amendments.  It  is  of  little  importance  for  the 
purpose  of  this  study  whether  the  section  really  gave  any 
additional  power  to  Congress  or  not,  but  it  was  evidently 
added  for  some  reason,  and  that  reason  does  concern  us. 

Very  little  was  said  of  it  when  the  Thirteenth  Amend- 
ment was  before  Congress,  though  the  subsequent  legisla- 
tion elicited  statements  which  revealed  the  purpose  of  the 
section.  Some  of  the  Southern  States  seemed  to  fear  that 
some  danger  was  concealed  in  the  second  section  of  the 

^"Ibid.,  p.  3041.  "^ 


Fourtfiffith  Amendment  Before   Congress.        137 


Amendment,  and  made  objection  on  account  of  it.  Gov. 
Perry7  of  South  Carolina,  wrote  President  Johnson  that 
there  was  no  objection  to  the  Thirteenth  Amendment  except 
the  second  section.  The  objection  to  this  section  was  that 
it^  might  be  held  to  give  Congress  power  to  legislate  for  the 
freedmen.  Secretary  Seward  replied  to  this  letter,  saying 
Ifaat  the  effect  of  the  second  section  was  to  restrain,  not  to 
enlarge,  the  power  given  by  the  first  section.^y  North 
Carolina^and  other  States  made  the  same  objection. 

The  opinion  given  by  Mr.  Seward  was  evidently  that  of 
Mi\_5tevens  also,  for  when  Mr.  Cook  introduced  a  resolu- 
tion, January  5,  1866,  declaring  that  it  was  the  sense  of  the 
House  that  the  second  section  conferred  power  upon  Con- 
gress to  legislate  for  the  freedmen  in  the  way  of  securing 
the  rights  of  freemen,  he  stated  that  it  was  contrary  to  the 
opinion  of  the  Secretary  of  State,  and  added:  "„We  all 
know  that  the  second  section  is  restraining."  ^^^  Although 
this  was  the  view  at  first  taken  by  the  Federal  Government, 
it  was  not  consistently  adhered  to,  for  it  has  already  been 
noted  that  the  power  to  pass  the  Civil  Rights  Bill  was 
€lairned  to  be  derived  from  this  section.  The  passage  of 
that  bill  over  the  veto  of  the  President  declared,  so  far  as 
Congress  could  do  so,  that  the  second  section  of  the  Thir- 
teenth Amendment  did  confer  legislative  power  upon  Con- 
gress. Whatever  claim  was  made  in  regard  to  the  second 
section  of  that  Amendment  applies  with  equal  force  to  the 
fifth  section  of  the  Fourteenth  Amendment. 

Mr.  Howard  gave  a  more  complete  statement  in  regard 
to  the  fifth  section  than  any  other  member/  After  refer- 
ring to  the  privileges  and  immunities  to  b6  secured  by  the 
first  section,  stating  that  the  provisions  of  that  section,  were 
merely  restrictions  upon  the  States  and  not  grants  of  power 

to  Congress, -Tie  made  the  following  declaration  in  regard  to 

■■ ^ /ki: ______ 

**•  Hollis,  Reconstruction  in  S.  C,  p.  44. 
"*Cong.  Globe,  39th  Cong.,  ist  Sess.,  p.  130. 


138        Adoption   of   the  Fourteenth  Amendment. 

the  fifth^  section :  "Here  is  a  direct  affirmative  delegation 
of  power  to  Congress  to  carry  out  all  the  principles  of  all 
these  guarantees,  a  power  not  found  in  the  Constitution."  ^^^ 
Thus  according  to  Mr,  Howard  the  power  which  Congress 
has  under  the  Fourteenth  Amendment  is  not  derived  from 
either  or  all  of  the  first  four  sections,  but  entirely  from  the 
fifth  section. /His  statement  in  regard  to  it  was  not  ques- 
tioned by  any  one,  evidently  being  acceded  to  by  all  as  a 
true  statement  of  its  purpose.  Indeed,  there  could  be  little 
doubt  as  to  the  purpose  of  the  section,  especially  in  view  of 
the  legislation  enacted  under  the  second  section  of  the 
Thirteenth  Amendment.  iWith  a  single  exception,  the  min- 
ority in  the  Senate  gave  no  attention  to  the  section/but  it 
'  so  happens  that  the  VieWs  expressed  by  Mr.  Howard  and 
]\^r.  Hendricks  agree.  Mr.  Hendricks  sounded  the  danger 
of  the  section,  that  is,  according  to  the  view  of  the  minority, 
when  he  said  that  it  "  provides  that  Congress  shall  have 
power  to  enforce,  by  appropriate  legislation,  the  provisions 

(of  the  Article.  When  these  words  were  used  in  the  Amend- 
ment abolishing  slavery,  they  were  thought  to  be  harmless, 
but  during  this  session  there  has  been  claimed  for  them  such 
force  and  scope  of  meaning  as  that  Congress  might  invade 
the  jurisdiction  of  the  States,  rob  them  of  thtir  reserved 
rights,  and  crown  the  Federal  Government  with  absolute 
and  despotic  power.  As  construed,  this  provision  is  most 
dangerous.    Without  it  the  Constitution  possesses  the  vital- 

"^Ibid.,  p.  2766.  Speaking  further  of  it,  he  said:  "It  (5th  sec.) 
gives  to  Congress  power  to  enforce  by  appropriate  legislation,  all 
the  provisions  of  this  Article  of  Amendment.  Without  this  clause, 
no  power  is  granted  to  Congress  by  the  Amendment  or  any  one 
of  its  sections.  It  casts  upon  Congress  the  responsibility  of  see- 
ing to  it,  for  the  future,  that  all  the  sections  of  the  Amendment 
are  carried  out  in  good  faith,  and  that  no  State  infringes  the 
rights  of  persons  or  property.  I  look  upon  this  clause  as  indis- 
pensable for  the  reason  that  it  thus  imposes  upon  Congress  this; 
power  and  duty.  It  enables  Congress,  in  case  the  States  shall  en- 
act laws  in  conflict  with  the  principles  of  the  Amendment,  to  cor-' 
rect  that  legislation  by  a  formal  Congressional  enactment"  (p. 
2768) . 


Fourteenth  Amendment  Before   Congress.        139 

ity  and  vigor  for  its  own  enforcement  through  the  appro- 
priate departments."  ^°^ 

These  unequivocal  statements  by  the  representatives  of 
the  two  parties  leave  little  room  for  doubt  as  to  the  purpose 
of  the  section  or  of  the  power  to  be  conferred  on.  Congress. 
What  the  one  regarded  as  essential  to  the  Amendment  to 
make  it  effective,  the  other  regarded  as  dangerous.  Prac- 
tically the  same  declaration  was  made  in  the  House  by  Mr. 
Harding,  of  Kentucky,  for  he  asserted  that  it  transferred 
all  power  over  their  citizens  from  the  state  Governments 
to  Congress,  and  that  Congress  would  thus  hold  all  power 
of  legislation  over  the  citizens  of  the  States  in  defiance  of 
the  States."^ 

"*  Ibid.,  p.  2940. 
"»Ibid.,  p.  3147. 


CHAPTER  III. 

The  Amendment  Before  the  People. 

^^he  Amendment  having  passed  Congress  June  13,  1866, 
was  formally  presented  to  the  Secretary  of  State,  June  16, 
and  was  by  him  submitted  to  the  several  States  for  ratifica- 
tion or  rejection.^; 

Before  considering  the  action  of  the  several  Legislatures, 
it  may  be  well  to  see  what  the  people  in  general  thought  of 
it,  what  they  understood  it  to  mean,  what  powers  were  to  be 
given  to  Congress  and  the  Central  Government,  and  what 
evils  were  to  be  remedied  by  it.  Our  source  of  information, 
on  this  particular  question,  is,  with  few  exceptions,  limited 
to  newspapers,  both  editorial  and  correspondence.  This  will 
also  include  the  open  letters  of  public  men  and  the  speeches 
made  during  the  campaign. 

When  the  nature  of  the  Amendment  proposed  by  the  Com- 
mittee April  30  became  known,  it  was  declared  that  the  object 
of  the  first  section  seemed  to  have  been  secured  by  the  Civil 
Rights  Bill,  and  that  the  main  purpose  of  the  Amendment 
was,  therefore,  to  keep  the  South  out  until  after  the  election.^ 
Even  as  early  as  December  15,  1865,  the  purpose  of  the  first 
section  was,  it  was  said,  to  "  confer  upon  Congress  all  the 
powers  now  exercised  by  the  state  Legislatures,  and  to  re- 
duce the  States  to  the  conditions  of  counties."^  The  same 
writer  also  asserted  that  it  was  proposed  to  give  "  Congress 
absolute  power  over  the  social  and  civil  laws  of  each  State." 

_  *N.  Y.  Herald,  April  30,  1866.  The  Herald  claimed  to  be  an 
independent  paper  but  usually  supported  the  administration. 

'N.  Y.  World,  December  15,  1865.  To  show  that  reference  was 
had  to  what  finally  became  the  firit  section,  the  following  resolu- 
tion introduced  by  Mr.  Bingham  was  given  in  the  same  editorial : 
"  The  Congress  shall  have  power  to  make  all  laws  necessary  and 
proper  to  secure  to  all  persons  in  every  State  of  the  Union,  equal 
protection  in  their  rights  of  life,  liberty  and  property." 

140 


The  Amendment  Before  the  People.  141 

This  same  paper,  which  was  strongly  opposed  to  the  entire 
Congressional  plan  of  reconstruction,  on  April  30,  follow- 
ing, stated  that  the  whole  plan  of  the  Committee  had  two 
objects  in  view:  (i)  To  keep  the  South  out  of  the  Union. 
(2)  To  put  the  onus  of  its  remaining  out  on  the  States  of 
that  section.  The  aim  of  the  first,  it  continued,  was  to  pre- 
vent those  States  from  participating  in  the  Presidential  elec- 
tion of  1868,  and  that  of  the  second  was  to  retain  their  sup- 
porters in  the  North — the  cardinal  principle  thus  being  to 
keep  the  Radicals  in  control  of  the  Government.  The 
Amendment,  after  its  passage  by  Congress,  was  declared  to 
be  a  mere  party  platform,  since  it  was  neither  intended  nor 
desired  to  be  ratified.^  A  rather  conservative  organ  said 
that  if  the  Amendment  passed  Congress  and  was  submitted 
to  the  States,  it  would  secure  the  next  President  to  the  party 
in  power  whether  it  were  ratified  or  not,  but  stated  that  the 
scheme  was  milder  than  had  been  expected.*  It  was  pre- 
dicted that,  if  the  third  section  as  proposed  by  the  Recon- 
struction Committee,  which  was  to  keep  the  South  out  until 
after  the  presidential  election,  could  practically  be  nullified 
by  the  pardons  of  the  President,  and  many  thought  it  could 
be,  something  else  would  be  substituted  to  accomplish  the 
same  purpose.^  As  a  matter  of  fact  this  was  done,  but 
probably  because  the  original  section  seemed  too  radical  and 
severe,  though  the  above  view  doubtless  had  some  weight 
since  several  members  of  the  House  were  of  the  same 
opinion.  The  section,  as  has  been  stated  previously,  was 
retained  by  the  House  only  by  a  combination  of  the  extrem- 
ists of  both  sides.  The  Amendment  was  also  declared  to  be 
an  ingeniously  contrived  scheme  for  popular  support  in  the 
North,  while  unnecessarily  reenacting  the  Civil  Rights  Bill.* 
The  paper  gave  a  correct  expression  of  the  popular  impulse 
and  feeling  when  it  said  that  the  great  majority  of  the  peo- 
ple would  approve  the  scheme,  which  was  declared  to  be  a 
"  powerful  platform   for   the   approaching   fall   elections," 

*Ibid.,  June  15,  1866. 

*N.  Y.  Herald,  May  i,  1866. 

^Ibid.,  May  10,  1866. 

*  Ibid.,  June  2  and  10,  1866. 


142        Adoption   of   the  Fourteenth  Amendment, 

while  the  proposition  that  all  should  be  equal  before  the  law 
was  calculated  to  have  "  a  pleasing  effect  upon  the  popular 
ear."^ 

The  New  York  Times,  a  Republican  paper,  agreed  with 
the  Herald  and  the  World  that  the  main  purpose  of  the 
Amendment,  was  to  secure  the  presidential  election  of  1868, 
though  declaring  that  most  of  its  propositions  or  provisions 
were  sound,  but  that  the  South  could  not  be  expected  to  sub- 
scribe to  some  of  them.^  In  fact  it  went  so  far  as  to  say 
that  Mr.  Stevens  and  the  Radicals  did  not  want  the  South 
restored  until  after  that  election  and  that  the  Committee  evi- 
dently did  not  want  it  accepted  by  the  States.®  Four  days 
later  this  same  paper  stated  that  all  of  the  sections  of  the 
Amendment,  except  the  third,  had  been  acted  upon  as  sep- 
arate measures,  and  that  the  third  section  had  been  added  for 
partisan  purposes.  Mr.  Howard's  speech  of  May  23  was 
declared  to  be  frank  and  satisfactory  and  his  exposition  of 
the  need  for  securing,  by  constitutional  Amendment,  the 
privileges  and  immunities  of  citizens  to  be  "  cogent  and 
clear,"^°  It  was  in  this  speech  that  Mr.  Howard  said  that 
one  of  the  purposes  of  the  first  section  was  to  give  Congress 
power  to  enforce  the  Bill  of  Rights.  By  declarations  of  this 
kind,  by  giving  extracts  or  digests  of  the  principal  speeches 
made  in  Congress,  the  people  were  kept  informed  as  to  the 
objects  and  purposes  of  the  Amendment.  The  Senate's  sub- 
stitute for  the  third  section  was  said  to  be  more  acceptable, 
but  that  it  was  too  exacting  for  the  South  to  accept  ;^^  and 
that  though  the  Amendment,  per  se,  was  just  and  reasonable, 
it  should  not  have  been  made  a  condition  precedent  for  the 
admission  of  the  Southern  States,  since  its  ratification  was 
practically  impossible.^^ 

The  New  York  Evening  Post,^^  a  conservative  Republi- 
can paper,  practically  stated  the  same  view  as  that  stated 

*Ibid.,  June  15  and  19,  1866. 

'April  30,  1866. 

•  Ibid.,  May  14,  1866. 

"  Ibid.,  May  25,  1866. 

"  Ibid.,  June  2,  1866. 

"  Ibid.,  Sept.  13,  1866. 

"  Ibid.,  May  i,  1866. 


The  Amendment  Before  the  People.  143 

by  the  Times,  but  furthermore  declared  that  the  first  section 
was  unnecessary  since  the  Civil  Rights  Bill  secured  the  same 
thing.^*  It  also  stated  that  the  most  thoughtful  press  either 
disapproved  the  Amendment  altogether  or  gave  faint  praise 
to  it,  the  third  section  especially  being  the  object  of  attack.^'^ 
Extracts  from  other  papers  were  given  in  this  issue  to  sub- 
stantiate this  statement.  This  paper  objected  to  the  third 
and  fourth  sections  on  the  ground  that  only  permanent 
things  should  be  put  in  the  Constitution,  while  the  first  sec- 
tion was  thought  unnecessary  unless  the  Civil  Rights  Bill 
was  unconstitutional.  The  Southern  whites  should  be  con- 
ciliated, it  continued,  without  sacrificing  equal  justice,  free 
speech,  and  free  press,  evidently  thinking  these  things  were 
secured  by  the  Civil  Rights  Bill.^'  This  bill,  in  the  opinion 
of  the  Post,  was  approved  by  the  people.^'^ 

The  New  York  Tribune,  one  of  the  strongest  Radical 
journals  in  the  country,  never  discussed  the  different  sec- 
tions of  the  Amendment,  though  it  published  them  several 
times.  It  also  published  speeches  made  in  advocacy  of  the 
Amendment  and  of  course  advocated  its  adoption,  though  its 
appeals  for  votes  were  made  more  to  the  passions  and  selfish- 
ness of  the  people  than  to  their  judgments.  Moreover,  it 
never  denied  the  statements  which  were  made  as  to  the 
effect  or  result  on  the  States  in  case  it  were  adopted. 

The  leading  organ  of  the  Radicals  at  Washington  declared 
that  the  first  section  embodied  the  principles  of  the  Civil 
Rights  Bill.^^  This  same  organ  declared,  after  the  Amend- 
ment had  been  adopted  by  Congress,  that  "  appropriate  legis- 
lation "  would  be  necessary  to  give  real  vitality  to  it,  and 
that  it  would  be  monstrous,  "  after  such  an  auspicious  restor- 
ation of  peace  among  men  of  common  sentiments  and  com- 
mon obligations  "  to  have  differences  as  to  legislation  impera- 
tively necessary  to  enforce  an  Amendment  which  had  cost 

"Ibid.,  May  11,  1866. 

"  Ibid.,  May  7,  1866. 

"Ibid.,  June  5,  1866. 

"Ibid.,  July  5,  1866. 

"The  Washington  Chronicle,  April  29,  1866.  It  was  published 
by  D.  C.  Forney,  but  his  brother,  J.  W.  Forney,  the  Secretary  of 
the  Senate,  seems  to  have  written  or  inspired  many  of  the  editorials. 


144        Adoption   of   the  Fourteenth  Amendment. 

"  so  much  time,  reflection,  and  research."^®  This  was  a 
plain  declaration  by  a  Radical  organ,  and  may  be  accepted 
as  stating  the  position  of  the  majority,  that  "  appropriate 
legislation  "  ought  to  be  passed  to  enforce  the  Amendment 
when  it  became  a  part  of  the  original  law.  The  second  sec- 
tion was,  however,  declared  to  be  the  most  important — the 
statement  that  the  North  would  gain  lo  representatives  and 
that  the  South  would  lose  lo,  making  a  total  gain  of  20  for 
the  North,  if  the  Amendment  were  adopted,  and  just  the 
opposite  if  rejected,  being  inserted  in  every  issue  of  the 
paper  from  September  20  to  October  10,  1866.^°  In  an 
editorial  on  Secretary  Browning's  letter,  it  was  declared  that 
the  independence  of  the  States  "  within  their  appropriate 
and  constitutional  spheres  "  was  not  to  be  interfered  with, 
though  the  Federal  Government  (Congress)  would  decide  as 
to  the  spheres.^^  If  Congress  could  say  what  were  the 
"  appropriate  and  constitutional  spheres  "  of  the  States,  was 
it  not  practically  admitting  the  statements  made  in  Brown- 
ing's letter  ?  In  this  same  editorial  it  was  stated  that  so  long 
as  the  States  provided  for  the  protection  of  life,  liberty  and 
property  of  the  citizens  the  Federal  Government  would  be 
relieved  of  an  obligation,  but  the  opinion  was  expressed  that 
federal  protection  was  imperatively  needed  in  certain  States. 
The  Cincinnati  Commercial,  a  conservative  Republican 
paper,  said  that  the  proposal  of  the  first  section,  while  right 
in  principle,  was  a  recognition  of  a  doubt  as  to  the  con- 
stitutionality of  the  Civil  Rights  Bill.^^  The  object  of  the 
Amendment  was  declared  to  be  to  throw  the  protecting  arm 
of  the  Constitution  around  all  classes,  native  and  naturalized. 
Under  the  first  section  no  special  codes  could  be  passed,  as 
had  been  done  by  several  States,  but  all  citizens  were  to 
be  equal  before  the  law,  to  have  the  same  rights  and  priv- 
ileges, and,  added  the  writer,  the  only  way  this  could  be 
obtained  was  by  an  Amendment  to  the  Constitution  which 
would  enforce  it.     The  people  had  the  right,  he  continued, 

"  Ibid.,  June  14,  1866. 
"  Ibid.,  September  20,  1866. 
'*  Ibid.,  October  26,  1866. 
"•May  3,  1866. 


The  Amendment  Before  the  People.  145 

to  change  the  organic  law  when  their  judgment  thought  it 
necessary.2^  It  was  not  denied  but  that  the  tendency  of  the 
Amendment  was  towards  centralization,  but  that  the  people 
had  the  right  to  do  this  if  they  saw  fit. 

Even  a  New  England  paper  said  that  the  third  section 
would  be  fatal  to  the  Amendment,  and  that  the  object  of  the 
Amendment,  taken  as  a  whole,  was  to  prevent  the  restora- 
tion of  the  Southern  States  until  after  the  presidential  elec- 
tion.2* 

Mr.  Tremain,  president  of  the  Republican  State  conven- 
tion of  New  York,  declared,  in  a  speech  before  that  body 
at  Syracuse,  September  5,  1866,  that  the  first  section  was 
necessary  on  account  of  the  Dred  Scott  decision  and  to  make 
the  Civil  Rights  Bill  permanent  by  putting  it  beyond  the 
power  of  repeal  or  of  the  Courts  to  declare  it  unconstitu- 
tional.^^ The  Convention  adopted  the  resolutions  advocat- 
ing the  Amendment  and  declaring  that  the  New  Orleans  riot 
was  due  to  the  President's  policy  of  reconstruction. 

The  Herald,  which  had  at  first  made  quasi  objections  at 
least  to  the  Amendment,  said  that  there  was  nothing  very 
objectionable  in  it,  but  that  every  principle  of  it  had,  at  one 
time  or  another,  been  recommended  by  the  President  to  some 
Southern  State  or  to  Congress,  and  that  he  should  have 
accepted  it.^®  In  this  same  issue  a  correspondent  had  writ- 
ten that  the  first  section  would  only  extend  federal  protec- 
tion over,  and  provide  equal  laws  for  all  classes  of  citizens 
in  the  several  States. 

Thus  it  will  be  seen  that  the  Northern  press,  with  few  ex- 
ceptions, if  any,  took  the  view  that  the  first  section  of  the 
Amendment  reenacted,  or  gave  authority  for,  the  Civil 
Rights  Bill,  and  conferred  citizenship  upon  the  negro,  there- 

^  Ibid.,  June  21,  1866.  "  It  is  sheer  nonsense  to  talk  about  a 
centralized  despotism  making  inroads  upon  the  Constitution,  chang- 
ing the  form  and  sweeping  away  ancient  prerogatives  and  im- 
munities. The  people  have  a  clear  right  to  make  changes  in  their 
organic  law  as  in  their  judgment  are  demanded." 

^  Ibid.,  May  6,   1866.     Quoted  Springfield   (Mass.)   Republican. 

«  N.  Y.  Herald,  September  6,  1866. 

*Ibid.,  September  13,  1866. 


146        Adoption   of  the  Fourteenth  Amendment. 

by  nullifying  that  portion  of  the  Dred  Scott  decision  which 
had  denied  this  under  the  original  Constitution.  As  a  gen- 
eral thing  the  press  did  not  go  into  any  elaborate  discussion 
of  the  Amendment  itself,  but  spoke  of  the  possibility  of  its 
ratification.  Many  speeches  and  letters  were,  however,  pub- 
lished in  regard  to  it. 

Probably  the  strongest  and  most  illuminating  letter  giv- 
ing an  exposition  of  the  Amendment  was  that  written  by 
Secretary  Oliver  H.  Browning  to  Colonel  W.  H.  Benneson 
and  Major  H.  V.  Sullivan.     It  was  written  October  13, 1866, 
and  was  given  a  wide  publication,  with  much  comment  on  it 
by  the  leading  papers.     In  this  letter  Mr.  Browning,  who 
was  a  member  of  the  President's  Cabinet,  declared  that  new 
and  enormous  powers  would  be  conferred  upon  Congress 
by  the  proposed  Amendment ;  that  it  would  be  possible  to  de- 
rstroy  the  judiciaries  of  the  States  under  it ;  and  that  the 
'object  and  purpose  of  the  clause  "  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  and  property  without  due  process 
of  law  "  was  to  subordinate  the  state  judiciaries  to  federal 
supervision  and  control,  thereby  totally  annihilating  the  inde- 
•pendence  and  sovereignty  of  state  courts  in  the  administra- 
I  tion  of  state  laws,  as  well  as  destroying  the  authority  and 
^control  of  the  States  over    purely  local    affairs.     He  also 
asserted  that,  since  the  federal  judiciary  already  had  juris- 
diction of  all  questions  arising  under  the  Constitution  and 
laws  of  the  United  States,  this  new  provision  would  make 
possible  the  drawing  of  every  matter  of  judicial  investigation, 
civil  and  criminal,  however  insignificant,  into  the  vortex  of 
ithe  federal  judiciary.     For  it  was  certainly  possible,  he  con- 
tinued, for  either  party  to  a  controversy  to  claim  that  he  was 
being  deprived  of  life,  liberty,  or  property,  as  the  case  might 
be,  by  the  States  without  due  process  of  law,  and  that  this 
question  would  be  cognizable  in  a  Federal  Court,  resulting  in 
delay  if  nothing  else.     There  will  be  a  tendency,  he  says,  on 
the  part  of  the  Federal  Government  to  take  away  the  con- 
trol of  local  affairs  from  the  people,  the  States,  and  the  local 
municipal  bodies,  and  to  concentrate  it  in  its  own  hands.^'' 

^  Cincinnati  Commercial,  October  26,  1866.    The  letter  was  given 
in  full. 


The  Amendment  Before  the  People.  147 

The  editorial  comment  in  the  paper  from  which  the  letter 
was  taken  never  controverted  the  statements  of  Mr.  Brown- 
ing as  to  the  effect  of  the  first  section,  but  rather  admitted 
them  by  saying  that  the  danger  to  our  country  was  disinte- 
gration, not  consolidation. 

The  editorial  comment  of  the  New  York  Times,  October 
25,  in  regard  to  this  same  letter  did  not  deny  any  of  the 
statements  made  in  it,  but  said  that  it  was  impolitic  to  pub- 
lish it  since  it  was  supposed  to  express  the  views  of  the  Pres- 
ident. The  same  paper,  three  days  later,  seemed  to  admit 
Browning's  contentions  by  saying  that  the  dangers  set  forth 
in  his  letter  could  be  avoided  if  the  States  would  act  justly — 
would  deprive  no  one  of  life,  liberty,  or  property  without  due 
process  of  law.  It  evidently  agreed,  however,  with  the  dec- 
laration made  in  that  letter  that  any  one  who  alleged  that 
he  was  deprived  of  either  of  those  things,  could  bring  his 
case  before  the  Federal  Courts.  If  that  much  be  granted, 
then  the  whole  case  falls,  and  Mr.  Browning's  position  be- 
comes unanswerable.  To  show  further  the  view  taken  by 
the  Times  in  regard  to  the  Amendment,  citation  was  made 
in  the  same  editorial  of  the  case  of  James  Lewis,  colored, 
which  had  been  decided  by  Justice  Hardy,  of  Alabama.  In 
that  case  the  Civil  Rights  Bill  was  declared  unconstitutional, 
the  decision  of  the  lower  court  fining  the  negro  for  carrying 
arms  being  sustained.  The  Times  added  that  this  could  not 
have  been  done  had  the  Amendment  been  a  part  of  the  Con- 
stitution, and  that  its  object  was  to  prevent  such  legislation 
and  such  decisions. 

The  Herald  of  the  same  date,  also  writing  of  Browning's 
letter,  declared  it  to  be  the  old  Southern  State's  Rights  argu- 
ment with  secession  eliminated,  though  it  did  not  contradict 
any  of  the  statements  made  in  the  letter.  The  Tribune  prac- 
tically acknowledged  that  the  position  taken  by  Mr.  Brown- 
ing was  unassailable,  but  declared  that  the  arguments  used 
by  him  to  reach  his  conclusion  were  too  trivial  to  be  refuted. 
This  seems  contradictory,  but  in  regard  to  the  clause  which 
Mr.  Browning  especially  attacked,  it  declared :  "  It  is  enough 
to  say  that  fact  as  well  as  theory  requires  that  this  principle 


148        Adoption   of   the  Fourteenth  Amendment. 

should  be  embodied  in  the  national  Constitution.  The  Rebel 
States  have  repeatedly  and  grossly  outraged  it,  and  it  is  be- 
cause life,  liberty,  and  property  have  been  illegally  taken 
away  in  spite  of  mere  state  laws,  that  the  Federal  Govern- 
ment is  bound  to  extend  equal  protection  to  all  citizens."^® 
The  editorial  also  states  that  it  was  the  purpose  of  the 
Amendment,  that  is  of  the  first  section,  to  extend  the  equal 
protection  of  the  laws,  not  only  in  cases  where  the  laws  are 
unjust  and  unequal,  but  in  cases  where  people  are  denied 
equal  treatment  in  spite  of  state  laws.  The  laws  might  be 
fair  and  just,  but  their  execution  might  not  be.  In  other 
words,  the  Federal  Government  was  to  see  to  it  that  all  were 
equally  protected,  whether  this  equal  protection  was  denied 
by  the  States  or  by  individuals.  This  distinction  is  very  im- 
portant as  will  be  seen  in  the  chapters  that  are  to  follow. 

It  was  feared  by  some  that  the  Amendment  would  have  the 
effect  of  postponing  reconstruction  and  that  what  had  been 
gained  by  the  Civil  Rights  Bill,  which  secured  freedom  of 
speech  in  every  part  of  the  Union,  might  be  lost.^®  It  was 
later  asserted  that  the  first  section  was  the  same  as  that  bill,^" 
thus  being  unnecessary  unless  the  latter  was  unconstitutional, 
a  concession  which  was  not  admitted.^^ 

In  a  previous  chapter  we  have  given  the  opinion  of  the 
Civil  Rights  Bill  which  was  generally  held  by  the  press  of  the 
country  and  by  the  people.  We  have  in  this  chapter  given 
some  instances  where  it  was  stated  that  the  first  section  was 
but  a  reenactment  of  that  bill.  It  is  but  proper,  however, 
that  further  evidence  should  be  given  to  see  whether  that  was 
the  general  impression.  The  press,  with  few,  if  any,  excep- 
tions, either  held  this  view  or  uttered  no  opinion  on  it.  We 
find  that  no  one  denied  this  contention,  though  many 
claimed  that  it  did  more  than  merely  reenact  that  bill. 

The  views  expressed  by  the  papers  were  verified  by  the 
speakers  during  the  Campaign,  many  of  whom  were  mem- 
bers of  Congress.     Senator  Trumbull,  in  a  speech  at  Chi- 

"*  October  25,  1866. 

**N.  Y.  Evening  Post,  May  i,  1866. 

**Ibid.,  May  11,  1866. 

"Ibid.,  June  5,  1866. 


The  Amendment  Before  the  People.  149 

cago,  August  I,  said  that  the  first  section  was  a  reiteration 
of  the  Civil  Rights  Bill,  probably  a  needless  reiteration,  but  /' 
that  it  was  thought  proper  to  put  it  in  the  fundamental  law.^^ 
Mr.  Colfax,  Speaker  of  the  House,  expressed  the  same  view 
at  Indianapolis  a  week  later,  saying  that  the  Amendment 
was  necessary  to  keep  the  Southern  judges  from  declaring 
the  bill  unconstitutional.^^  General  Lane,  at  Indianapolis, 
and  General  Schenck,  at  Dayton,  declared  the  same  thing  on 
August  18.^*  Both  of  these  were  members  of  Congress. 
Senator  Sherman,  at  Cincinnati,  September  28,  said  that  the 
first  section  embodied  the  Civil  Rights  Bill.  Hannibal  Ham- 
lin, who  later  became  a  Senator,  made  the  same  declaration 
at  Philadelphia,  October  13.^^  Carl  Schurz,  in  an  Article  in 
the  Atlantic  Monthly  for  March,  1867,  asserted  the  same 
thing.  Mr.  E.  P.  Whipple,  in  the  same  magazine  for  No- 
vember, 1866,  gave  expression  to  a  similar  view. 

Since  the  Amendment  was,  in  theory  at  least,  the  main  ^ 
issue  of  the  Campaign,  the  speeches  which  were  made 
should  be  of  much  help  to  us  in  determining  what  the  peo- 
ple understood  by  it,  for  a  vigorous  campaign  was  waged 
and  great  crowds  attended  the  rallies.  Mr.  Colfax,  in  the 
speech  to  which  we  have  already  referred,  seemed  to  think 
that  freedom  of  speech  would  be  secured  by  the  Amend- 
ment, for  he  said :  "  I  desire  that  in  this  free  land  every 
freeman  shall  speak  his  honest  sentiment  without  fear  of 
molestation."  Mr.  Hendricks,  who  was  one  of  the  few 
Democratic  Senators,  declared  on  the  next  day  at  the  same 
place  that  negroes  would  demand  to  hold  office  and  to  sit  on 
juries  if  the  Amendment  were  adopted,  and  that  even  suf- 
rage  might  be  granted  under  the  first  section.^®  Mr.  George 
W.  Morgan,  the  Democratic  nominee  against  Columbus  De- 
lano, who  was  a  candidate  for  reelection,  declared  in  a 
speech  August  21,  that  the  first  section  was  a  bold  stride  to- 
wards centralization ;  that  under  it  the  Federal  Government 

^  Cincinnati  Commercial,  August  3,  1866. 

^  Ibid.,  August  Q,  1866. 

^  Ibid.,  August  22,  1866. 

=*  N.  Y.  Herald,  October  6,  1866. 

^  Cincinnati  Commercial,  August  9,  1866. 


150        Adoption  of  the  Fourteenth  Amendment. 

would  claim  the  power  to  define  the  rights  of  citizens  of  the 
States ;  and  that  there  would  in  a  short  time  be  negro  jurors, 
voters,  judges,  and  legislators  in  Ohio  by  virtue  of  laws  of 
Congress.  He  then  asked  the  people  if  they  were  prepared 
for  such  a  state  of  affairs,  and  that  if  they  were,  advised 
them  to  vote  for  Delano,  who  would  aid  in  putting  them  on 
an  equality  with  the  negroes.^''  Mr,  Bingham,  the  author  of 
the  first  section,  asserted  in  a  speech  at  Bowerstown,  Ohio, 
August  24,  that  that  section  was  a  strong,  plain  declaration 
/  that  "  equal  laws  and  equal  and  exact  justice  "  should  be 
secured  in  every  State  "  by  the  combined  power  of  all  the 
people  of  every  State."  ^^  Mr.  Hannah,  a  former  United 
States  District  Attorney  for  Indiana,  said  that  those  who 
opposed  this  section  sanctioned  class  legislation  and  were 
willing  to  permit  States  to  deprive  American  citizens  of  life, 
liberty,  and  property  without  due  process  of  law.^®  Judge 
Perkins,  of  the  same  State,  declared  that  the  Amendment 
was  a  stab  at  the  right  of  the  States  to  control  their  own  af- 
fairs, and  asked  where  was  to  be  the  limit  of  the  power  of  the 
Federal  Government.*"  Hon.  George  H.  Pendleton,  Demo- 
cratic nominee  for  Vice  President  in  1864,  said  in  a  speech 
at  Edinburg,  Indiana,  that  the  effect  of  the  Amendment 
would  be  to  make  a  consolidated  government.*^  Mr.  Delano, 
in  a  speech  at  Coshocton,  Ohio,  August  28,  where  his  oppo- 
nent, Mr.  Morgan,  had  spoken  a  week  before,  declared  that 
suffrage  was  not  granted  by  the  Amendment,  but  that  it  was 
a  guarantee  that  the  Federal  Government  would  protect  its 
citizens  in  their  civil  rights.*^  General  M.  F.  Force,  who 
was  a  candidate  for  a  judicial  office,  said,  in  a  speech,  Sep- 
tember 22,  in  reply  to  the  objection  that  the  clause  about  due 
process  of  law  would  give  the  Federal  Courts  occasion  to  in- 
terfere in  local  affairs,  that  in  the  first  place  federal  judges 
were  as  good  as  state  judges  ;  and  in  the  second  place,  that  it 

"  Ibid.,  August  23,  1866. 
^  "Ibid.,  August  27,   1866. 
t    "Ibid.,  August  27,  1866. 

**  Ibid.,  August  28,  1866. 

"  Ibid.,  August  30,  1866. 

**  Ibid.,  August  31,  1866. 


The  Amendment  Before  the  People.  151 

was  no  new  phase,  since  the  Constitution  already  provided 
that  the  National  Government  should  not  deprive  any  citizen 
of  life,  liberty,  or  property  "  without  due  process  of  law," 
and  that  he  desired  to  see  this  cornerstone  of  liberty  the  law 
in  every  State.*^  He  evidently  thought  that  the  first  section 
would  make  the  national  "  due  process  of  law  "  the  law  of 
every  State.  Since  this  clause,  as  used  in  the  Constitution 
and  exercised  in  the  Courts,  requires  a  jury  trial,  it  would 
follow  that  the  States  could  not  deprive  any  one  of  life, 
liberty,  or  property  without  a  trial  by  a  jury  composed  of 
twelve  men.  This  was  no  doubt  the  general  understanding 
of  the  clause.  Judge  T.  W.  Hartley,  at  Cincinnati,  Sep- 
tember 29,  in  reply  to  Mr.  Sherman's  speech  of  the  night  be- 
fore, said  that  the  first  section,  together  with  the  fifth,  prac- 
tically made  the  Federal  Government  absolute,  since  Con- 
gress was  given  the  power  to  define  and  determine  the  privi- 
leges and  immunities  of  American  citizens,  thereby  being 
able  to  confer  suffrage.** 

Mr.  George  W.  Weston,  of  Bangor,  Maine,  who  was 
said  to  be  the  founder  of  the  first  Republican  newspaper,  in 
a  letter  to  the  editor  of  the  New  York  Tribune,  June  25, 
1866,  gave  his  approval  to  the  first  clauses  of  section  one, 
saying  that  it  was  desirable  that  they  become  a  part  of  the 
Constitution.  It  was  a  great  misfortune,  he  declared,  that 
these  clauses  were  inextricably  mixed  up  with  a  clause  hav- 
ing no  relation  to  the  rights  or  interests  of  the  negroes. 
The  last  clause  was  the  objectionable  one.  The  words  of 
it,  he  said,  had  a  pleasing  sound  to  the  ear,  but  that  the 
people  should  not  on  that  account  be  deceived  as  to  their 
effect  in  this  new  form.  He  called  attention  to  the  fact 
that  Congress  and  the  Federal  Government  were  already 
restrained  in  this  particular  by  a  similar  clause  in  the  Bill 
of  Rights,  which  was  enforceable  by  the  federal  judiciary. 
Similar  provisions  in  the  Constitutions  of  the  several  States 
restrained  their  respective  Legislatures,  while  these  safe- 

"  Ibid.,  September  24,  1866. 
"Ibid.,  September  30,  1866. 


A 


y 


152        Adoption   of   the  Fourteenth  Amendment. 

guards  were  enforceable  by  the  state  judiciaries.  This  had 
been  the  case  since  1789,  he  continued,  and,  with  no  griev- 
ance to  which  public  attention  had  been  called,  it  was  now 
proposed,  in  the  third  generation  after  the  Fathers,  by  a 
provision  applicable  to  30,000,000  of  whites  as  well  as  to 
4,000,000  of  blacks,  "  to  place  the  protection  of  life,  liberty, 
and  property  as  against  state  legislation,  under  a  national 
guaranty,  which  will  be  enforceable  by  the  federal  judi- 
ciary." The  clause  which  declared  that  no  State  should 
"  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws  "  was  sufficient  to  put  an  end  to  all  caste 
distinctions  and  was  all  that  was  necessary  for  the  security 
of  the  blacks.  Under  the  last  clause,  he  asserted,  nearly 
every  case  could  be  brought  before  the  Federal  Supreme 
Court  under  the  plea  that  "  due  process  of  law  "  had  been 
denied.  Furthermore,  it  involved  a  revolution  of  our  ju- 
dicial system,  being  "  an  alarming  concentration  of  power 
in  the  central  tribunals,  and  a  prostitution  of  the  independ- 
ence of  the  States  in  many  and  vital  particulars.  It  is  in 
all  respects  as  wholly  uncalled  for  and  gratuitous  as  it  is 
indefensible  and  dangerous."  He  also  objected  to  the  third 
section,  and  concluded  by  saying :  "  The  terms  of  settle- 
ment which  are  offered  are  shameful,  both  to  the  victors 
and  the  vanquished,  and  are  more  so  to  us  than  to  them." 
It  was  also  stated  in  the  letter  that  he  was  in  sympathy  with 
the  Republican  party,  but  that  he  could  not  support  the 
Amendment  on  account  of  the  dangers  in  it.*® 

The  National  Intelligencer,  of  Washington,  declared  that 
the  fifth  section  authorized  Congress  to  enact  any  law  which 
a  mere  majority  might  deem  necessary  to  secure  equal 
rights  to  all  classes  of  citizens,  and  that  this  would  result 
in  an  invasion  of  the  power  of  the  States  to  legislate,  with 
a  consequent  centralization  of  power  in  the  hands  of  Con- 
gress.*®    This  same  paper  said  that,  under  the  first  and  fifth 

**  National  Intelligencer,  July  10,   1866. 
**Ibid.,  October  25,  1866. 


The  Amendment  Before  the  People.  153 

sections,  Congress  might  declare  that  suffrage  was  a  privi- 
lege, thereby  annulling  state  laws  requiring  residence,  pay- 
ment of  taxes,  etc.  This  might  also  be  made  to  include  the 
right  to  hold  office.  Congress  could  also  constitutionally 
extend  the  jurisdiction  of  the  Federal  Courts,  continued  the 
writer,  to  include  all  manner  of  cases,  even  so  far  as  prac- 
tically to  destroy  the  local  governments  and  state  judi- 
ciaries. The  opinion  was  also  expressed  that  the  people 
did  not  intend  to  clothe  Congress  with  such  power  nor  did 
they  intend  to  express  by  their  votes  a  desire  that  the  Fed- 
eral Government  should  be  put  in  a  position  so  to  cripple 
the  power  of  the  States.  He  seemed  to  give  his  approval 
to  the  other  provisions  of  the  Amendment,  but  said  that  his 
objections  to  these  were  invincible.*'^  This  declaration  was 
made  after  the  overwhelming  victory  of  the  Radicals,  and 
cannot,  therefore,  be  charged  with  a  partisan  motive. 

The  great  object  of  the  Amendment,  another  paper  as- 
serted, was  to  take  away  the  power  of  the  people  and  to 
place  it  in  the  hands  of  a  political  party  in  Congress.  "  In 
its  whole  tenor,  scope,  and  design,  it  is  opposed  to  every 
conceded  and  sound  principle  of  Republican  government. 
It  belongs  only  to  a  fatherless  despotism."  *^ 

The  declarations  and  statements  of  newspapers,  writers 
and  speakers,  which  have  been  given,  show  very  clearly,  it 
seems,  the  general  opinion  held  in  the  North.  That  opin- 
ion, briefly  stated,  was  that  the  Amendment  embodied  the 
Civil  Rights  Bill  and  gave  Congress  the  power  to  define 
and  secure  the  privileges  of  citizens  of  the  United  States. 
There  does  not  seem  to  have  been  any  statement  at  all  as 
to  whether  the  first  eight  Amendments  were  to  be  made 
applicable  to  the  States  or  not,  whether  the  privileges  guar- 
anteed by  those  Amendments  were  to  be  considered  as  privi- 
leges secured  by  the  Amendment,  but  it  may  be  inferred 

"Ibid.,  November  17,  1866. 

**  Pittsburg  Post,  September  26,  in  World,  November  5,  1866. 


154        Adoption  of   the  Fourteenth  Amendment. 

that  this  was  recognized  to  be  the  logical  result  by  those 
who  thought  that  the  freedom  of  speech  and  of  the  press 
as  well  as  due  process  of  law,  including  a  jury  trial,  were 
secured  by  it. 

It  is  proper,  at  this  place,  to  see  what  view  was  taken  of 
the  Amendment  in  the  South.     Only  a  few  references  are 
necessary  to  show  that  the  opinion  which  prevailed  gener- 
ally in  the  South  was  similar  to  that  held  in  the  North.     The 
Charleston  Courier  approved  the  interpretation  which  Mr. 
Browning  gave  of  it,  in  that  it  conferred  new  and  enormous 
powers  upon  Congress  and  was  fraught  with  evil.*^     This 
same  paper  published,  with  apparent  approval,  the  messages 
of  Governor  Jenkins,  of  Georgia,  and  Governor  Walker,  of 
Florida,   to   the  same  effect.^"     Another   leading    Southern 
paper  took  an  even  stronger  position  than  did  the  Courier. 
It  was  declared  that  the  negro,  being  made  a  citizen  by  the 
first  section,  was  to  be  placed  on  an  equality  with  the  whites 
as  well  as  to  be  given  protection  before  the  courts  in  all 
his  civil  rights,  the  latter  of  which  Georgia  had  already 
done.     It  was  then  asked  where  was  the  limit  to  the  power 
bestowed  upon  Congress  by  the  fifth  section.    The  follow- 
ing statement  of  Governor  Sharkey,  of   Mississippi,  was 
also  quoted  approvingly :  "  Should  the  Amendment  become 
a  part  of  the  Constitution,  we  shall  have  a  far  different 
government  from  that  inherited  from  our  fathers,"  and  to 
this  the  editor  added :   "  Then  indeed  will  the  Sun  of  Lib- 
erty have  set  in  the  South."^^     In  another  issue  the  editor 
discussed  and  approved  the  interpretation  given  in  the  let- 
ter of  Mr.  Browning.''^ 

Another  very  influential  paper  asserted  that  the  first  sec- 
tion, which  struck  at  the  foundation  of  American  liberty, 
changed  the  character  of  the  government,  transferred  from 

"November  i,  1866. 

■"  November  7,  1866. 

"Atlanta  Intelligencer,  October  4,  1866. 

"Ibid.,  October  30,  1866. 


The  Amendment  Before   the  People.  155 

the  States  to  the  General  Government  the  right  to  define 
the  qualifications  of  their  citizens,  and  obliterated  the  rights 
and  powers  of  municipal  authority  in  the  States.  It  was 
also  declared  to  be  clearly  evident,  from  the  language  of  the 
section,  that  the  Civil  Rights  Bill,  the  provisions  of  which 
ignored  and  set  aside  the  jurisdiction  of  the  civil  courts  of 
the  States  over  their  own  internal  municipal  regulations 
was  to  be  given  constitutional  validity  or  authority.^^  The 
editor  called  attention  to  the  fact  that  little  attention  was 
given  to  the  first  section,  though  he  regarded  it  as  the  most 
dangerous  part  of  the  whole  Amendment.  Two  days  later 
this  same  writer,  who  was  an  exceptionally  strong  man, 
declared  that  the  States  would  be  made  the  executive  de- 
pendencies of  a  consolidated  despotism  by  the  Amendment 
and  that  the  conclusion  was  inevitable  that  the  designs  of 
the  Radicals,  as  shown  in  the  Amendment,  were  to  merge 
all  the  reserved  powers  of  the  States  in  the  Central  Gov- 
ernment. 

Later  in  the  campaign,  the  same  paper  said  that  the  New 
York  Herald,  the  Raleigh  Standard,  and  the  Newbern 
Times  proceeded  upon  the  idea  that  the  third  section  was 
the  most  offensive  to  the  South,  but  again  reiterated  its 
statement  of  an  earlier  date  that  this  was  not  the  case,  but 
that  the  first  section  was  the  objectionable  one.^*  ''  The 
Radicals,"  continued  the  Sentinel,  "who  understand  the 
hearing  of  the  Amendment  upon  the  organic  law  and  genius 
of  the  Government,  keep  their  deep  and  revolutionary  de- 
signs out  of  the  view  of  the  people.  North  and  South,  alto- 
gether, and  only  dwell  upon  the  demagogical  features  of 
the  Amendment.  They  know  that  to  talk  of  disfranchising 
'  rebels  and  traitors '  is  a  sweet  sound  to  the  ears  of  the 
Northern  people.     But  we  repeat  what  we  have  before  said, 


"Raleigh  Sentinel,  June  20,  1866. 
_  "Ibid.,  September  19,  1866,  in  the  World  of  October  29.    Italics 
in  the  original. 


156        Adoption  of   the  Fourteenth  Amendment. 

the  disfranchising  clause  is  the  least  objectionable  feature 
of  the  Howard  Amendment." 

The  first  sentence  of  this  quotation  is  an  admirable  state- 
ment of  the  actual  condition  at  the  time,  as  the  aftermath 
clearly  shows.  It  has  already  been  noted  that  most  of  the 
attention  of  the  speakers  during  the  campaign  was  given  to 
the  second,  third,  and  fourth  sections,  the  "  demagogical 
features  "  or  partisan  elements  of  the  Amendment,  and  that 
little  stress  was  put  upon  the  first  and  fifth  sections.  It 
would  seem  that  the  Sentinel  had  given  the  proper  reason 
for  this.  A  later  statement  of  the  same  paper  is  almost 
equally  as  significant.^"^ 

The  same  writer  also  maintained  that  the  first  and  fifth 
sections  contained  the  germ  of  consolidation  as  well  as  the 
destruction  of  the  efficiency,  if  not  the  very  existence,  of 
the  state  governments.  Congress  was  empowered  by  the 
fifth  section,  he  continued,  to  pass  any  law  necessary  to 
enforce  the  Amendment,  and  might,  under  this  provision, 
declare  that  suffrage  was  a  privilege  which  could  not  be 
denied  by  state  law.  There  was  nothing,  he  asserted,  in 
the  Constitution  which  would  render  such  a  law  unconsti- 
tutional, and  that  it  would  clearly  be  within  the  province 
of  Congress  to  define  citizenship  and  the  privileges  with 
which  it  should  be  endowed.  Congress  would  also  be  em- 
powered, he  added,  to  organize  such  courts  and  bureaus  as 
it  might  deem  proper,  to  give  jurisdiction  over  a  particular 
class  of  persons  to  these  courts,  and  to  permit  them  not  only 

•^  Ibid.,  October  8,  in  World  of  October  29,  1866. 

The  editorial  is  in  part  as  follows:  "That  Amendment,  we  hold, 
is  adverse  to  the  inherent  and  rightful  powers  of  the  States,  pro- 
vides for  and  looks  to  a  solid  sovereignty,  instead  of  a  govern- 
ment of  limited  powers,  breaks  down  the  wholesome  checks  of  the 
Constitution  and  the  state  governments,  and  must  inevitably  result 
in  universal  negro  suffrage,  not  by  the  free,  voluntary  consent  of 
the  people  of  the  States,  but  by  the  future  forced  action  of  Con- 
gress and  the  consequent  transfer  of  municipal  control  of  the  state 
governments  over  their  internal  affairs  into  the  hands  of  Congress. 
We  believe  that  this  is  a  wrong — a  wrong  which  neither  Providence 
indicates  nor  the  results  of  war  render  necessary  or  proper." 


The  Amendment  Before  the  People.  157 

to  sue  and  be  sued,  and  to  testify,  but  to  be  jurors,  lawyers, 
and  judges.  In  conclusion  he  asked :  "  What  evil,  then, 
could  Congress  fasten  upon  the  Southern  States  which  is 
not  constitutionally  and  legally  provided  for  in  this  Amend- 
ment? Is  there  not  more  reason  to  hope  for  a  change  of  a 
had  law  than  to  change  a  had  constitution?  "  This  writer 
was  not  opposed  to  an  Amendment  fixing  a  just  ratio  of 
representation,  an  Amendment  defining  treason  and  its  pun- 
ishments for  the  future,  an  Amendment  declaring  the  Union 
indissoluble,  or  an  Amendment  preventing  the  States  from 
abridging  in  any  manner  the  civil  rights  of  the  negroes,  but 
was  opposed  to  Amendments  like  the  Howard  Amendment 
which,  he  asserted,  clearly  violated  "  the  principles  of  the 
Constitution  as  it  now  is."  '*' 

The  Nashville  Union  and  American  said  the  Amendment 
was  the  initial  step  of  the  Radical  plan  for  centralizing 
power  in  the  Central  Government  and  for  keeping  the  gov- 
ernment in  control  of  the  Radical  States,  and  that  one  who 
could  not  see  this  was  incompetent  to  advise  men  of  intel- 
ligence as  to  their  rights  and  interests."^  The  Florida 
Union,  of  Jacksonville,  declared  that  the  Amendment  would 
destroy  the  old  Constitution,  with  its  system  of  checks  and 
balances,  would  tear  away  the  safeguards  of  the  States,  and 
would  give  the  Federal  Government  power  to  control  the 
local  affairs  of  the  States,  even  to  the  extent  of  declaring 
who  should  hold  office.^*  The  Louisville  Journal,  October 
9,  1866,  said  it  tended  towards  centralization  and  en- 
croached upon  the  domestic  independence  of  the  States, 
and  was  furthermore  partisan,  unequal,  unjust,  and  inex- 
pedient."' The  Memphis  Avalanche,  November  13,  1866, 
said  that  it  had  been  the  "  war  cry  of  the  partisan  leaders 
in  the  late  struggle  on  the  hustings  and  at  the  ballot-box," 

°*  Ibid.,  in  World  for  October  29,  1866. 
"^  In  World  for  October  29,  1866. 

"Ibid.,    also    in    McPherson's    Scrap    Book,    "The    Fourteenth 
Amendment,"  p.  40. 
*  Ibid.,  p.  27. 


158       Adoption  of  the  Fourteenth  Amendment. 

and  that  it  meant,  to  Northern  people,  negro  equaUty,  social 
and  political,  but  not  applicable  to  themselves.^**  The 
Montgomery  Mail,  February,  1867,  said  the  chief  objection 
to  the  Amendment  was  the  first  section,  which  "  forbids  a 
State  from  depriving  him  (a  negro)  of  any  rights  or  privi- 
leges which  a  white  man  may  possess."  *^ 

The  Picayune,  of  New  Orleans,  said  that  the  first  section 
was  but  an  incorporation  into  the  Constitution  of  the  Civil 
Rights  Bill.®^  An  opponent  of  the  Amendment  said  that 
it  secured  the  negro  the  right  to  vote,  to  sit  on  juries,  to 
enter  hotels,  lecture  rooms,  etc.^'  The  Vicksburg  Herald 
was  of  the  opinion  that  the  Radicals  neither  expected  nor 
desired  the  South  to  adopt  the  Amendment,  its  object  being 
to  keep  that  section  out  until  after  the  presidential  election.®* 

A  press  correspondent,  seemingly  a  Republican,  said  that 
the  Democrats  of  Kentucky  feared  that  Congress  would  be 
empowered  by  the  Amendment  to  confer  the  suffrage.  The 
writer  further  said  that  the  Amendment  admitted  negroes 
to  the  witness  stand,  the  jury  box,  street  cars,  good  seats 
in  public  conveyances,  good  accommodations  at  hotels,  the 
public  schools,  and  all  other  civil  rights  which  white  people 
enjoyed,  and  that  if  it  went  this  far,  the  Democrats  rea- 
soned that  it  might  go  further.®"  It  was  stated  by  the 
Vicksburg  Republican,  after  the  Amendment  had  been  de- 
clared a  part  of  the  Constitution,  that  under  the  first  sec- 
tion negroes  were  entitled  to  sit  on  juries  and  advised  them 
to  see  that  they  were  granted  this  right.®®  The  Philadel- 
phia News,  July  31,  1868,  maintained  that  the  elective  fran- 
chise was  one  of  the  privileges  secured  by  the  Amendment, 
not  only  to  negroes,  but  to  women  and  children.®^    This 

"Ibid.,  p.  43. 

"Ibid.,  p.  9. 

Ibid.,  p.  26. 

*■  Ibid.,  p.  24. 

"  Ibid.,  p.  27. 

*  Ibid.,  p.  84. 

"Ibid.,  p.  83. 

"Ibid.,  p.  77. 


The  Amendment  Before  the  People.  159 

was  an  unusual  view,  however,  and  while  the  paper  seems 
to  have  bitterly  opposed  the  Radicals,  this  statement  can 
hardly  be  said  to  have  been  made  for  partisan  purposes 
since  it  had  been  announced  more  than  a  week  before  that 
the  Amendment  had  been  ratified. 

Mr.  Benjamin  H.  Hill,  of  Georgia,  who  was  later  elected 
Senator,  stated,  in  an  open  letter  to  the  editor  of  the  New 
York  Herald,  that  the  South  accepted  the  conditions  of  the 
President  without  complaint  as  well  as  the  Freedmen's 
Bureau  and  Civil  Rights  Bills  without  representation,  but 
that  they  objected  to  the  requirement  of  Congress  that  they 
disfranchise  their  leaders.®^     Mr.  Hill  was  a  Union  man. 

The  statements  which  have  been  given  seem  amply  suffi- 
cient to  show  that  the  Southern  press  and  people  discerned 
the  tendency  of  the  Amendment  and  pointed  out  their  ob- 
jections to  it.  The  objection  to  the  third  section  was  prob- 
ably the  one  which  influenced  the  great  mass  of  the  people 
more  than  any  other.  That  section  was  easily  understood 
and  its  effect  could  be  seen  and  felt,  and  as  becomes  a  brave 
and  noble  people  they  would  not  willingly  consent  to  the 
degradation  and  punishment  of  their  own  leaders,  for  they 
were  unable  to  see  that  their  leaders  were  more  deserving 
of  such  treatment  than  were  they  themselves.  But  for  this 
section,  the  South,  under  the  circumstances,  might  have 
been  induced  to  give  its  assent  to  the  Amendment  in  order 
to  regain  its  position  in  the  councils  of  the  nation,  though 
this  may  be  doubted.  With  that  section  in,  however,  it 
preferred  to  endure  military  rule  rather  than  humiliate 
itself  by  deserting  its  brave  and  loyal  leaders. 

It  is  a  rather  striking  coincidence  that  the  thoughtful 
men,  North  and  South,  regarded  the  first  section,  in  connec- 
tion with  the  fifth,  as  the  most  objectionable  of  the  entire 
Amendment,  for  in  it  they  saw  the  possibility,  and  no  doubt 
the  purpose,  of  a  strong  consolidated  Federal  Government, 

"Herald,  October  10,  1866. 


i6o        Adoption  of   the  Fourteenth  Amendment. 

with  greatly  enlarged  powers  put  into  the  hands  of  Con- 
gress. These  views  were  presented  to  the  people  in  able 
letters  and  editorials,  and  many  were  undoubtedly  aware  of 
the  dangers  pointed  out.  So  many  questions,  however, 
were  presented  that  some  of  these  dangers  were  lost  sight 
of,  but  we  shall  not  at  present  consider  the  motives  which 
induced  the  great  majority  of  the  people  to  give  their  assent 
to  the  Amendment. 


CHAPTER   IV. 
The  Amendment  Before  the  States. 

It  now  becomes  our  duty  to  trace  the  course  of  the 
Amendment  before  the  Legislatures  of  the  several  States 
and  to  determine,  if  possible,  what  they  thought  it  meant 
and  what  reasons  were  given  for  its  approval  or  disap- 
proval. 

Connecticut  was  the  first  State  to  take  action  on  the 
._Amendment,  which  had  been  submitted  to  the  Secretary  of 
State  on  June  i6,  1866,  and  by  him  submitted  to  the  several 
"  States.  There  was  no  delay  in  Connecticut,  for  the  Gover- 
nor of  that  State  sent  it  to  the  Legislature  on  June  19.  A 
motion  was  made  in  the  Senate  that  the  consideration  of 
the  Amendment  be  postponed  until  the  next  General  As- 
sembly. This  was  done  no  doubt  for  the  purpose  of  giving 
the  people  an  opportunity  to  express  their  opinion,  but  the 
motion  was  defeated.  The  Amendment  was  ratified  in  the 
Senate  by  a  vote  of  11  to  6,  June  25,  after  a  short  debate.  \ 
The  House,  two  days  later,  ratified  it  by  a  vote  of  125  to 
88.  It  was  a  party  vote  in  both  houses,  the  Democrats 
opposing  it  on  the  grounds  of  expediency  and  policy,  and 
declaring  that  Congress  could  not  change  the  Constitution 
during  the  enforced  absence  of  certain  Representatives  / 
from  Congress.  The  Republicans  contended  that  Congress 
had  all  the  powers  of  conquest  against  the  conquered 
rebels.^ 

New  Hampshire  followed  close  upon  the  heels  of  Con- 
necticut in  taking  action,  for  the  Legislatures  of  these  two 

^  Senate  Journal  of  Conn.,  1866,  p.  374,  and  Annual  Cyclopedia, 
1866,  pp.  255-56. 

II  161 


1 62        Adoption   of   the  Fourteenth  Amendment. 

States  were  in  session  at  the  time.  Qn^  Iuae-26^-i^6$j  Jhe. 
House  Committee  reported  a  resolution  for  the  ratification 
of  the  Fourteenth  Amendment,  the  minority  submitting  a 
.jreport  with  their  objections.  The  resolution  was  debated 
f  at  some  length,  June  26,  27  and  28,  and  was  adopted  on 
June  28,  by  a  vote  of  207  to  112.^ 

The  minority  report  gave  the  following  reasons,  among      1 
"^thers,  against  the  ratification  of  the  Amendment :      j  ^.^^ 
M.  Because  the  States  most  deeply  interested  were  un- 
justly excluded  from  all  participation  in  Congress  on  the 
subject  of  the  Amendment. 

2.  Because  there  was  nothing  in  the  condition  of  any  sec- 
tion of  the  country  to  render  the  Amendment  necessary. 

4.  Because  there  were  several  amendments  in  one,  each 
of  which  should  be  given  separate  consideration  and  action, 
and  not  be  acted  upon  as  a  unit. 

5.  Because  the  proposed  Amendment  is  ambiguous  or 
contradictory  in  its  provisions,  jthe  first  section  prohibiting 
any  State  from  abridging  the  privileges  of  citizens  of  the 
United  States,  the  right  of  suffrage  being  claimed  as  one 
of  these  privileges,  and  the  second  section,  by  inference, 
allowing  the  States  to  restrict  the  right  of  suffrage  if  will- 
ing to  submit  to  the  consequent  disabilities. 

"  6.  Because  said  Amendment  is  a  dangerous  infringe- 
ment upon  the  rights  and  independence  of  all  the  States,  ' 
North  as  well  as  South,  assuming,  as  it  does,  to  control  their 
legislation  in  matters  purely  local  in  their  character,  and 
impose  disabilities  on  them  for  regulating,  in  their  own  way, 
the  right  of  suffrage, — clearly  a  state  right, — a  right  vital 
to  the  theory  of  our  government,  and  most  sacredly  guarded 
by  the  framers  of  the  Constitution." 

7.  Because  there  was  no  corresponding  reduction  in 
direct  taxes  for  loss  of  representation. 

"  13.  And  finally,  because  the  only  occasion  and  real  de- 

*  N.  H.  House  Journal,  1866,  p.  231. 


The  Amendment  Before  the  States.  163 

sign  of  the  proposed  Amendment  is  to  accomplish  indirectly 
what  the  General  Government  has  and  should  have  no 
power  to  do  directly,  namely,  to  interfere  with  the  regula- 
tion of  the  elective  franchise  in  the  States,  and  thereby 
force  negro  siiffrage  upon  an  unwilling  people."  ^ 

The  fifth,  sixth  and  thirteenth  sections  of  this  report 
show  clearly  what  the  minority  thought  would  be  the  effect 
of  the  Amendment.  The  sixth  reason  is  especially  impor- 
tant since  it  shows  that  the  view,  which  was  later  held  by 
many  eminent  men  to  be  the  true  interpretation  of  the 
Amendment,  was  perceived  at  this  early  date.  It  is  to  be 
regretted  that  we  have  no  record  of  the  debates  which  took 
place,  for  we  are  unable  to  know  what  answers,  if  any,  were 
given  to  the  above  objections. 

The   Senate   Committee   reported  the   House   resolution 
favorably  on  July  2,  a  minority  report  identical  with  that 
made  in  the  House  being  submitted.     The  resolution  was 
debated  July  5  and  6,  passing  the  Senate  on  the  latter  date    . 
by  a  vote  of  9  to  3.* ,.,... — —    i 

The  third  State,  strange  to  say,  which  considered  the 
Amendment,  was  Tennessee.  The  Legislature  of  that  State 
was  not  in  session  at  the  time,  but  a  special  session  was 
called  for  the  purpose  of  ratifying  the  Amendment.  The 
Legislature  met  in  accordance  with  the  summons  of  Gov- 
ernor Brownlow/  sometimes  called  Parson  Brownlow, 
July  4.  / 

In  the  Senate  it  was  proposed  to  submit  the  question  of 
ratification  or  rejection  of  the  Amendment  to  the  people, 
but  this  resolution  was  defeated.  Senator  Frazier  then 
offered  an  amendment  to  the  resolution  proposing  the  rati- 
fication of  the  Amendment.  This  amendment  was  in  the 
following  terms:  "Provided,  that  the  foregoing  proposed 
Amendments  to  the  Constitution  of  the  United  States  shall 

'  Ibid.,  pp.  176-178. 

*N.  H.  Senate  Journal,  1866,  p.  94. 


164        Adoption  of  the   Fourteenth  Amendment. 

not  be  so  construed  as  to  confer  the  right  of  suffrage  upon 
"a  negro,  or  person  of  color,  or  to  confer  upon  such  negro 
"oi-'person  of  color  the  right  to  hold  office,  sit  upon  juries,^ 
or  to  intermarry  with  white  persons!  nor  shall  said  proposed 
Amendments  be  so  construed  as  to  prohibit  any  State  from 
enacting  and  enforcing  such  laws  as  will  secure  these  ends, 
not  inconsistent  with  the  present  Constitution  of  the  United 
States,  nor  shall  said  proposed  Amendments  be  so  con- 
strued as  to  abridge  the  reserved  rights  of  the  States  in  the 
election  and  qualification  of  their  own  officers,  and  the  man- 
agement of  their  domestic  concerns,  as  provided  and  secured 
by  the  present  Constitution  of  the  United  States."  This_ 
amendment  was  rejected,  and  the  Amendment  was  then  rati- 
fied by  a  vote  of  16  to  14.°  There  was  very  little,  if  any, 
debate  in  the  Senate,  but  the  amendment  proposed  by  Sen- 
ator Frazier  shows  what  the  minority  thought  would  be  the 
construction  put  upon  the  Amendment.  It  is  of  course 
evident  that  a  State,  through  its  Legislature  or  otherwise, 
cannot  limit  or  extend  the  construction  or  interpretation  of 
a  proposed  Amendment  to  the  Constitution  of  the  United 
States,  but  its  effort  to  do  so  would  be  a  clear  indication  of 
what  it  feared  would  be  the  construction  of  the  proposed 
Amendment.  The  effort  of  the  minority  to  do  this  in  this 
particular  case  is  of  importance  only  as  showing  their 
views  of  the  Amendment.  It  may  not  be  altogether  proper 
to  say  that  the  majority,  by  rejecting  Senator  Frazier's 
amendment,  recognized  that  the  Amendment  would  secure 
those  things  which  his  amendment  proposed  to  include,  and 
that  they,  therefore,  intended  to  secure  them.  In  ordinary 
cases,  it  would  be  perfectly  proper  to  draw  such  a  conclu- 
sion, but  in  this  case  the  reason  for  the  rejection  of  the 
amendment  of  the  minority  might  properly  have  been  that 
the  Legislature  had  no  right  to  pass  such  a  restrictive  reso- 
lution, or,  in  other  words,  to  make  a  conditional  ratification 

*Tenn.  Senate  Journal  (Extra  Session),  1866,  pp.  18  and  24. 


The  Amendment  Before  the  States.  165 

of  the  AmendmguL...  It  is  evident,   however,  that  if  Mr. 

'  Frazier's  ihterpretation  or  Hmited  construction  were  to  be 
placed  upon  it,  that  the  first  eight  Amendments  would  not 
be  made  binding  upon  the  States. 

There  was  no  quorum  in  the  House  for  some  time,  so  that 
nothing  could  be  done  except  to  adjourn  from  day  to  day. 
After  considerable  ejffort,  two  of  the  recalcitrant  members 
wcre^  arrested  and  brought  into  a  committee  room  opening 
into  the  Chamber  of  the  House.  They  refused  to  vote  when 
their  names  were  called,  whereupon  the  Speaker  ruled  that 

jtbefe'Avas  no  quorum.  His  decision,  however,  was  over- 
ruled, and  the  Amendment  was  declared  ratified  July  19, 
1866,  by  a  vote  of  43  to  11,  the  two  members  under  arrest 
in  the  adjoining  committee  room  not  voting.^ 

New^  Jersey  followed  the  example  set  by  Tennessee  in  call 
ing  an  extra  session  of  the  Legislature.  In  the  latter  case 
it  was  called  ostensibly  to  elect  a  United  States  Senator,  but 
really  to  pass  upon  the  Amendment.  Governor  Ward  urged 
its  ratification  "  as  the  most  lenient  amnesty  ever  offered  to 
treason,  while  every  provision  is  wisely  adapted  to  the  wel- 
fare of  the  whole  country."  This  message  was  sent  to  the 
Legislature  September  10,  1866,  and  the  Amendment  was 
ratified  the  following  day  in  the  House  by  vote  of  34  to  29 ; 
in  the  Senate  it  received  11  votes,  the  10  Democrats  not 
voting.'^ 

The  Democrats  of  New  Jersey  were  successful  in  the  elec- 
tion of  1867,  securing  a  large  majority  in  the  House.  The 
Legislature  elected  at  this  time  met  on  January  14,  1868,  and 
eight  days  later  the  Judiciary  Committee  of  the  Senate  was 
instructed  to  report  a  joint  resolution  withdrawing  the  assent 
of  New  Jersey  to  the  Fourteenth  Amendment.  On  January 
28,  the  Committee  on  Federal  Relations  (composed  of  the 
Judiciary  Committees  of  both  houses)  reported  a  joint  reso- 
lution rescinding  the  resolution  approved  September  11,  1866, 
relative  to  the  Amendment,  and  withdrawing  the  assent  of 

•Tenn.  House  Journal  (Extra  Session),  1866,  p.  25. 
'Annual  Cyclopedia,  1866,  pp.  53^40- 


1 66        Adoption   of  the   Fourteenth  Amendment. 

New  Jersey  thereto.^/  The  resolution  declared  that  a  State 
had  the  right  to  witTTdraw  its  assent  to  an  Amendment  until 
it  had  been  ratified  by  three  fourths  of  the  States.  The 
origin  and  object  of  the  Amendment  were  declared  to  be  un- 
just, and  that  the  necessary  result  of  its  adoption  would  be 
"  the  disturbance  of  the  harmony,  if  not  the  destruction  of 
our  system  of  self-government."  It  was  also  declared  that 
eleven  States  had  been  excluded  from  Congress  in  order  to 
secure  two  thirds  of  both  Houses  for  it,  and  finding  that 
two  thirds  of  the  remaining  States  would  not  be  obtained, 
the  design  was  deliberately  formed  and  carried  out  by  eject- 
ing one  of  the  Senators  of  New  Jersey,  Senator  Stockton. 
The  resolution  further  declared  that  no  pretext  or  justifica- 
tion could  be  given  for  his  ejection,  and  that  it  and  the 
Amendment  had  the  same  object  in  view,  namely,  "  to  place 
new  and  unheard  of  powers  in  the  hands  of  a  faction."  The 
immense  alterations  to  be  made  in  the  fundamental  law  by 
the  proposed  Amendment,  continued  the  resolution,  were 
concealed  by  the  gilded  propositions  of  justice  which  were 
drawn  from  the  Constitutions  of  the  States.  The  third  sec- 
tion was  denounced  on  account  of  its  ex  post  facto  char- 
acter as  well  as  for  the  reason  that  it  conferred  upon  the 
legislative  branch  of  the  government  the  pardoning  power — 
a  power  which  properly  belonged  to  the  executive. 

The  resolution  further  declared  that  it  imposed  new  pro- 
hibitions upon  the  power  of  the  States  to  pass  laws  or  to  ex- 
ecute such  parts  of  the  common  law  as  the  national  judiciary 
might  hold  inconsistent  with  the  vague  provisions  of  the 
Amendment.  The  provisions  were  made  vague,  it  was 
asserted,  for  the  purpose  of  facilitating  encroachments  upon 
the  liberties  of  the  people.  The  federal  judiciary,  further- 
more, was  to  be  so  enlarged  as  to  bring  within  its  jurisdic- 
tion every  state  law  and  every  principle  of  common  law  re- 
lating to  life,  liberty  and  property.  The  whole  Amendment 
was  "  couched  in  ambiguous,  vague,  and  obscure  language, 
the  uniform  resort  of  those  who  seek  to  encroach  upon  public 
liberty."     It  was  also  stated  in  the  resolution  that  this  Legis- 

*.N.  J.  Senate  Journal,  1868,  pp.  31  and  40. 


The  Amendment  Before  the  States.  167 

lature  had  the  support  of  the  largest  majority  ever  given  ex- 
pression to  by  the  public  will.* 

The  resolution  passed  the  Senate  February  19,  1868,  by  a 
vote  of  ii.Jto^8/°  and  the  House  concurred  the  next  day  by 
a  vote  of  44  to  11.^^  The  Governor  returned  the  resolution, 
February  24,  without  his  approval,  stating  that  he  did  not  be- 
lieve that  a  State  could  withdraw  its  assent  to  a  proposed 
Amendment,/and  besides,  that  the  people  had  approved  the 
Amendment/in  the  election  after  its  adoption  and  that  it  had 
not  been  mentioned  in  the  campaign  preceding  the  election  of 
the  present  Legislature.^^  The  resolution  passed  the  Senate 
a  second  time,  March  5,  by  a  vote  of  11  to  9,^^  while  the 
"House  passed  it  by  a  vote  of  45  to  13.^*  In  the  House,  Mr. 
Atwater  presented  a  protest  for  himself  and  others  against 
the  passage  of  the  resolution,  but  this  protest  was  not  allowed 
to  be  printed  in  the  Minutes  of  the  Assembly. 

The  General  Assembly  of  Oregon  assembled  September 
10,  1866,  ^he  same  day  on  which  the  special  session  of  the 
New  Jersey  Legislature  met.  The  resolution  ratifying  the 
Fourteenth  Amendment  was  adopted  by  the  Senate  four  days 
later  by  a  vote  of  13  to  9,  after  having  rejected  an  amend- 
ment to  submit  the  question  of  ratification  or  rejection  to  the 
people.^'' 

On  the  17th  the  Senate  resolution  was  reported  to  the 
House,  where  it  had  a  somewhat  checkered  history.  It  was 
reported  back  from  the  Judiciary  Committee  on  the  19th, 
and  was  agreed  to  the  same  day,  apparently  without  debate, 
"by  a  vote  of  25  to  21.  A  protest  was  filed  by  the  minority 
against  the  passage  of  the  resolution  on  the  ground  that  it 
was  only  considered  one  day  by  the  Committee ;  that  the 
minority  of  the  Committee  had  not  been  consulted ;  that  some 
of  those  holding  seats  were  not  entitled  to  them;  and  that 
such  an  important  matter  as  the  Amendment  should  receive 

.'N.  J.  Legislative  Documents,  1868,  pp.  951-55.  ' 

*'*N.  J.  Senate  Journal,  1868,  p.  198. 
"  N.  J.  Minutes  of  the  Assembly,  1868,  p.  309. 
"N.  J.  Senate  Journal,  1868,  pp.  249-53. 
"  Ibid.,  p.  356. 

"  N.  J.  Minutes  of  the  Assembly,  1868,  p.  743. 
"  Oregon  Senate  Journal,  1866,  pp.  34-36. 


1 68        Adoption  of  the  Fourteenth  Amendment. 

some  consideration  and  deliberation.^*  In  fact  some  of  those 
holding  seats  were  afterwards  unseated,  thus  demonstrating 
the  correctness  of  the  declaration  of  the  minority.  Then  on 
October  6,  a  resolution,  declaring  the  passage  of  the  resolu- 
tion of  September  19  illegal,  was  adopted  by  a  vote  of  24  to 
18.  This  was  done  on  the  ground  that  the  passage  of  that 
resolution  was  obtained  by  the  votes  of  those  not  entitled  to 
seats.^^  The  resolution  of  October  6  was  reconsidered  on 
October  10,  and  was  lost  by  a  vote  of  24  to  23,  thus  refusing 
to  declare  invalid  the  resolution  of  September  19.^* 
'  ^  resolution  rescinding  the  ratification  of  the  Amendment 
vjvas  introduced  early  in  the  session  of  1868.  It  was  stated 
in  the  resolution  that  the  ratification  by  Oregon  had  been  ob- 
tained by  fraud,  and  that  the  Amendment  was  not  properly 
a  part  of  the  Constitution,  since  the  Southern  States  had 
ratified  it  under  governments  created  by  a  military  despot- 
ism.^^ The  Committee  on  Federal  Relations,  in  reporting 
the  resolution  September  23,  1868,  declared  that  the  ratifica- 
tion of  the  Amendment  by  the  last  Legislature  was  one  of 
the  reasons  for  the  overthrow  of  the  Radicals  at  the  recent 
election.  The  report  also  stated  that  the  people  expected 
them  to  rescind  the  action  of  the  last  Legislature.  The  reso- 
4ution  was  adopted  October  5,  by  vote  of  13  to  9.^°  The 
House  concurred  October  15,  by  vote  of  26  to  18.^^ 

Vermont  was  the  sixth  and  last  State  to  ratify  the  Amend- 
X  ment  during  the  year    1866.     The  Legislature    assembled 
^-"^ctober  11,  1866,  and  the  resolution  ratifying  the  Amend- 
ment was  adopted  unanimously  by  the  Senate  October  23,  the 
vote  being  28  to  o.^^     The  resolution  was  agreed  to  by  the 
House  October  30,  by  a  vote  of  196  to  ii.^' ,'  There  seems  to 
have  been  no  minority  report  nor  any  debate  whatever. 
New  York  was  the  first  to  ratify  in  1867,  the  Legislature 

"  Oregon  House  Journal,  1866,  pp.  74-77. 

Mbid.,  pp.  192-93. 

"  Ibid.,  p.  228. 

"Oregon  Senate  Journal,   1868,  p.  32. 

"Ibid.,  pp.  66  and  131. 

**  Oregon  House  Journal,  1868,  p.  273. 

**Vt.  Senate  Journal,  1866,  p.  75. 

"Vt.  House  Journal,  1866,  p.   140. 


The  Amendment  Before  the  States.  169 

of  that  State  meeting  January  i.     On  the  first  day  of  the 
session  resolutions  were  introduced  in  both  Houses  for  the 

'  ratification  of  the  Amendment.     Little  time  was  lost  in  the 

\  Senate,  for  the  resolution  was  referred  to  a  special  Commit- 
tee the  next  day,  and  was  adopted  the  day  following  by  a  vote 
of  23  to  3.^*     The  members  of  the  Senate  had  been  elected 

"m^  November,  1865,  but  they  doubtless  considered  the  suc- 
cess of  the  Republican  party  at  the  polls  in  1866  as  an  ex- 
pression of  the  will  of  the  people  that  the  Amendment  should 
be  ratified  since  it  had  been  made  the  issue  in  that  election. 
The  Senate  resolution  was  received  by  the  House  January  9, 
and  was  adopted  the  next  day  by  a  vote  of  71  to  36.^^  The 
members  of  the  House  had  been  elected  the  November  pre- 
ceding, and  were,  therefore,  acting  in  accordance  with  the 
expressed  desire  of  the  people.  Bernard  Cregan,  nicknamed 
"  Tom  Thumb  "  on  account  of  his  size,  was  the  only  Demo- 
crat in  the  House  who  voted  for  the  Amendment.^^  In  fact 
he  seems  to  have  been  the  only  one  in  any  of  the  Legislatures 
who  did  this. 

Ohio  was  equally  as  prompt  as  New  York  in  ratifying  the 
Amendment,  her  ratification  being  one  day  later.  Governor 
Cox,^^  in  his  message  to  the  General  Assembly,  January  2, 
1867,  recommended  the  ratification  of  the  Amendment,  de- 
claring that  it  was  necessary  to  correct  the  evils  remaining  in 

-the  Southern  States.  The  first  section,  he  maintained,  was  a 
grant  of  power  to  the  National  Government  to  protect  the 
citizens  of  the  United  States  in  their  legal  privileges  in  case 
any  State  should  attempt  to  oppress  any  individual  or  class 
or  to  deny  equal  protection  to  any  one.  The  necessity  for 
this  section,  he  asserted,  had  been  manifested  long  before  the 
war,  since  the  freedom  of  speech  and  of  discussion  was  not 
tolerated  there  prior  to  the  war.  The  power  conferred  by 
the  section  would  remain  in  abeyance  so  long  as  the  States 
acted  in  good  faith  and  gave  equal  protection.  A  resolution 
for  the  ratification  of  the  Amendment  was  introduced  in 

'*N.  Y.  Senate  Journal,  1867,  p.  34. 
''N.  Y.  House  Journal,  1867,  p.  77. 
"•N.  Y.  Herald,  January  11,  1867. 
"Executive  Doc.  (Ohio),  1866,  Pt.  I,  p.  281. 


I/O       Adoption  of  the  Fourteenth  Amendment. 

and  adopted  by  the  Senate  the  next  day,  the  vote  being  21  to 
12,^^  The  House  agreed  to  this  resolution  the  next  day, 
January  4,  by  a  vote  of  54  to  25.^®  ^he  resolution  was  not 
signed,  however,  until  January  11, /'thus  preventing  Ohio 
from  taking  precedence  over  New^  York.  A  resolution  was 
also  introduced  in  the  Senate  January  3,  to  the  effect  that 
no  Southern  State  should  be  admitted  into  the  Union  until 
a  sufficient  number  of  States  had  ratified  the  Amendment  to 
secure  its  incorporation  into  the  Constitution  of  the  United 
States,  but  this  failed  to  pass.^° 

Ohio  has  the  distinction  of  being  the  first  State  to  with- 
draw its  assent  to  an  Amendment  to  the  Constitution  of  the 
United  States.  The  Democrats  were  successful  in  the  elec- 
tion of  1867,  and  when  the  Legislature  assembled,  January 
6,  1868,  resolutions  were  introduced  in  both  Houses  for  the 
withdrawal  of  Ohio's  assent  to  the  Amendment  and  for  re- 
scinding the  resolution  adopted  January  11,  1867./ 

The  rescinding  resolution  declared,  among  other  things, 
that  the  Amendment  was  ex  post  facto  in  its  nature  and 
operation,  and  that  it  conferred  upon  Congress  the  power 
"  to  legislate  on  subjects  foreign  to  the  original  objects  of 
the  Federal  Compact."  It  was  also  stated  to  be  one  of  the 
objects  of  the  Amendment  to  enforce  negro  suffrage  and 
negro  equality  in  the  States,  and  the  ratification  of  it  by  the 
previous  Legislature  was  declared  to  be  a  misrepresentation 
of  the  public  sentiment  of  Ohio  and  contrary  to  the  best  in- 
terests of  the  white  race.  The  resolution  passed  the  House 
January  11,  1868,  by  a  vote  of  52  to  37.^^ 

The  resolution  was  amended  in  the  Senate  so  as  to  de- 
clare that  no  Amendment  to  the  Constitution  was  valid 
until  three  fourths  of  all  the  States  had  duly  ratified  it,  and 
that  until  it  was  so  ratified,  any  State  had  the  right  to  with- 
draw its  assent.  The  President  was  to  be  requested  to  for- 
ward to  the  Governor  of  Ohio  all  papers  on  file  in  the 
Executive    Department   certifying   the   ratification    of    the 

^  Ohio  Senate  Journal,  1867,  pp.  7-9. 
''Ohio  House  Journal,  1867,  p.  12. 
**  Ohio  Senate  Journal,  1867,  pp.  9  and  446. 
**  Ohio  House  Journal;  1868,  pp.  12  and  32. 


The  Amendment  Before  the  States.  171 

Amendment  by  the  General  Assembly  of  Ohio,  and  copies  of 
the  rescinding  resolution  were  to  be  sent  to  the  President, 
to  each  of  the  Senators  and  Representatives  of  Ohio  in  Con- 
gress and  to  the  Governors  of  the  several  States.  The  reso- 
lution as  amended  was  adopted  by  the  Senate  January  13, 
"By'aTvote  of  19  to  lyp  The  House  agreed  to  the  amend- 
rnent  by  a  vote  of  56  to  46,^^  and  the  resolution  was  signed 
January  15. 

The  statement  made  in  the  resolution  that  the  Amendment 
had  been  ratified  against  the  wishes  of  the  people  can  hardly 
be  sustained,  for  the  Legislature  which  ratified  it  was  elected 
in  the  fall  of  1866  after  a  full  discussion  of  the  Amendment. 
Governor  Hayes,  in  his  inaugural  address,  1868,  said  that  the 
Amendment  had  been  approved  by  the  people  and  that  there 
was  no  evidence  to  show  that  they  desired  the  assent  of 
Ohio  to  it  to  be  withdrawn.^*  It  was  also  stated  that  the 
Amendment  had  not  been  even  a  side  issue  in  the  campaign 
of  i867.='5 

Governor  Oglesby,  of  Illinois,  in  his  message  to  the  Gen- 
eral Assembly,  January  7,  1867,  said  that  the  people  had  en- 
"dqrsedjhe  Amendment  most  emphatically  "  after  a  full  and 
"deliberate  discussion."  The  Amendment  could  have  been 
made  with  propriety  before  the  war,  he  asserted,  but  that 
the  necessity  for  it  might  have  grown  out  of  the  war.  He 
thought  all  persotis  born  or  naturalized  in  the  United  States 
were  citizens,  and  were,  therefore,  entitled  to  all  the  polit- 
ical and  civil  rights  which  citizenship  conferred.^**  Four 
days  after  the  reception  of  this  message,  the  Senate,  after  a 
short  debate,  passed  a  resolution  ratifying  the  Amendment 
by  a  vote  of  17  to  8.^^  The  House  refused,  by  a  vote  of 
57  to  24,  to  refer  the  resolution  to  the  Committee  on  Fed- 
eral Relations.  It  then  agreed  to  the  resolution  by  a  vote  of 
60  to  25,  January  15.^* 

"'  -^^Ohio  Senate  Journal,  1868,  pp.  33-38. 
^'Ohio  House  Journal,   1868,  pp.  44-50. 
"Executive  Docs.  (Ohio),  1867,  Pt.  I,  p.  207. 
"  Cincinnati  Commercial,  January  15,  1868. 
^  111.  Senate  Journal,  1867,  p.  40. 
"  Ibid.,  p.  7^. 
"III.  House  Journal,  1867,  p.  134. 


1/2        Adoption  of   the  Fourteenth  Amendment. 

West  Virginia  was  the  fourth  state  to  ratify  the  Amend- 
ment in  January,  1867,  giving  her  assent  to  it  the  i6th.  The 
vote  in  the  House  was  43  to  11 ;  in  the  Senate  15  to  3.^® 

Kansas  disposed  of  the  Amendment  without  delay.  The 
Legislature  met  January  8,  1867,  and  on  the  following  day 
the  House  adopted  a  resolution  ratifying  the  Amendment 
by  a  vote  of  y6  to  7.*°  Two  days  later  the  Senate  con- 
curred, the  vote  being  23  to  o.,/  Governor  Crawford,  in  his 
message  of  the  9th,  stated  thaf  the  Amendment  had  been  the 
platform  submitted  to  the  people  in  the  canvass  of  1866, 
from  Maine  to  California.*^ 

On  January  11,  1867,  the  Committee  on  Federal  Relations 
reported  back  to  the  House  of  the  Maine  Legislature  the 
resolution  proposing  the  ratification  of  the  Amendment^ 
The  resolution  was  given  the  three  readings  on  the  same 
day,  being  adopted  by  a  vote  of  126  to  12.*^  The  most 
prominent  member  of  the  House  who  voted  for  the  resolu- 
tion was  the  Hon.  Wm.  P.  Frye,  at  present  a  United  States 
Senator  from  Maine.  The  vote  in  the  Senate  four  .days 
later  was  unanimously  in  favor  of  the  resolution.*^ J^  The 
Republican  State  Convention**  at  Bangor,  June  22,  1866, 
had  emphatically  endorsed  the  Amendment. 

There  was  about  as  little  opposition  to  the  Amendment  in 
Nevada  as  there  was  in  Maine,  for  the  House  ratified  it 
January  10,  1867,  by  a  vdte  of  34  to  4,*^  and  the  Senate 
January  21,  by  10  to  3.*^  The  members  of  both  Houses 
had  been  elected  in  November,  1866. 

Governor  Fletcher,  of  Missouri,  in  his  r^iessage  to  the 
Legislature,  January  4,  1867,  said  that  the  first  section  of 
the  Amendment  prevented  any  State  "  from  depriving  any 
citizen  of  the  United  States  of  any  of  the  rights  conferred 

*"  Documentary    History    of    the    Constitution,    II,    p.    693,    and 
Annual  Cyclopaedia,  1867,  p.  765. 
**  Kansas  House  Journal,  1867,  p.  79. 
"Kansas  Senate  Journal,  1867,  pp.  40,  76. 
"  Maine  House  Journal,  1867,  p.  78. 
**  Annual  Cyclopaedia,  1867,  p.  471. 
"Ibid.,  1866,  p.  467. 
"Nev.  House  Journal,  1867,  p.  25. 
**Nev.  Senate  Journal,  1867,  p.  47. 


The  Amendment  Before  the  States.  173 

on  him  by  the  laws  of  Congress,"  and  secured  to  "  all  per- 
sons equality  in  protection  of  life,  liberty,  and  property, 
under  the  laws  of  the  State."  ^^  This  is  a  specific  declara- 
tion that  no  State  could  deprive  any  citizen  of  any  right 
conferred  upon  him  by  Congress,  and  it  may  be  inferred 
that  the  Legislature  gave  an  implied  sanction  to  it  by  rati- 
fying the  Amendment. 

On  the  day  following  the  reception  of  the  Governor's 
message  the  Committee  reported  back  the  resolution  ratify- 
ing the  Amendment.  There  was  little,  if  any,  debate  on  it, 
and  the  resolution  was  adopted  the  same  day,  the  vote 
"being  26  to  6.*®  On  January  8,  the  House  agreed  to  the 
Senate  resolution  by  a  vote  of  85  to  34.***  <-- 

Governor  Morton,  in  his  message  to  the  General  Assembly  ^\J^ 
ofThdiana,  January  11,  suggested  that  schools  be  provided 
for  negroes,  and  advised  that  separate  schools  be  established 
on  account  of  the  dissatisfaction  which  would  be  engendered 
if  they  were  required  to  be  admitted  to  the  schools  for  the 
whites.^**  Immediately  after  the  delivery  of  the  message  a 
resolution  was  introduced  in  the  Senate  for  the  ratification 
of  the  Amendment.  This  resolution  was  favorably  reported 
by  the  Committee  on  Federal  Relations  on  January  16.  The 
minority  of  the  Committee  filed  a  report  stating  that  they  did 
not  believe  that  the  public  mind  was  at  present  in  a  condition 
for  changing  the  organic  law,  and  recommending  that  the 
question  be  submitted  to  the  people  at  another  time  and  un- 
der more  auspicious  circumstances.  The  resolution  was 
adopted,  however,  on  the  same  day,  the  vote  being  29  to  18.^^ 

No  speech  was  made  in  the  Senate  in  favor  of  the  resolu- 
tion and  only  two  against  it,  the  previous  question  having 
been  called.  Mr.  Hanna  spoke  for  one  hour  and  a  half  in 
opposition  to  it,  declaring  that  the  Amendment  would  change 
the  whole  organic  structure  of  the  Government  and  that  it 

"  Mo.  Senate  Journal,  1867,  p.  14. 

"  Ibid.,  p.  30. 

*'  McPherson,  Reconstruction,  p.   194. 

**  Ind.  Documentary  Journal,  1867,  I,  p.  21. 

"Ind.  Senate  Journal,  1867,  pp.  77-79- 


1/4       Adoption  of   the   Fourteenth  Amendment. 

put  "the  ax  to  the  roots  of  the  tree    (the  Constitution) 
itself."°2 

The  House  Committee,  in  reporting  the  resolution,  stated 
that  the  people  had  emphatically  declared  for  the  adoption 
of  the  Amendment  after  it  had  been  fully  discussed.  The 
minority  report  said  that  the  purposes  of  the  Amendment 
were  partisan  in  that  it  was  intended  to  perpetuate  power  in 
the  hands  of  a  minority  of  the  people.  The  report  further 
asserted  that  the  first  section  placed  all  citizens  on  a  political 
level,  and  conferred,  therefore,  upon  the  negroes  the  same 
political  and  civil  rights  enjoyed  by  white  persons,  includ- 
ing the  right  of  suffrage.  It  was  also  stated  that  the  people 
had  been  most  thoroughly  deceived  by  the  Republican  ora- 
tors and  that,  if  the  Amendment  were  submitted  to  the 
people  it  would  be  defeated  by  100,000  majority.^ ^ 

Mr.  Ross,  discussing  the  Amendment  in  the  House  de- 
clared that  it  would  have  the  effect  of  striking  out  the  word 
"  white  "  from  the  state  Constitution  and  of  repealing  all 
state  laws  making  distinctions  on  account  of  race  and  color. 
He  also  contended  that  it  would  make  the  negro  eligible 
to  seats  in  the  Legislature,  would  open  the  jury  box  to  him, 
and  would  permit  him  to  send  his  children  to  the  com- 
mon schools  with  the  white  children.^*  Another  speaker  de- 
clared next  day  that  the  Amendment  was  not  sincerely 
drafted  and  was  intended  to  destroy  the  power  of  the  States  1^ 
to  determine  the  status  of  citizenship,  and  that  its  "  ratifica- 
tion would  be  a  dangerous,  if  not  a  crowning  step  toward  that 
consideration  against  which  the  country  has  been  warned  by 
the  Fathers."  He  also  denounced  it  as  a  sectional,  partisan 
effort  to  confer  suffrage  on  the  negroes.^^  Mr.  Dunn,  speak- 
ing in  advocacy  of  the  Amendment,  said  that  the  interpre- 

"  The  entire  sentence  was  as  follows :  "  It  (the  Amendment)  pro- 
poses to  change  the  whole  organic  nature  of  our  government.  It 
does  not  purpose  merely  to  lop  off  from  the  limb  of  the  old  oak 
a  crooked  and  leafless  limb  that  is  thought  useless,  or  to  engraft 
upon  some  branch  of  its  noble  arms  additional  luxuriance  and 
beauty,  but  it  lays  the  ax  to  the  roots  of  the  tree  itself."  Ind. 
Brevier  Legislative  Reports,   1867,  pp.   44-46. 

"  Ind.  House  Journal,  1867,  pp.  101-105. 

"Ind.  Brevier  Legislative  Reports,  1867,  p.  80. 

"  Ibid.,  p.  88. 


The  Amendment  Before  the  States.  175 

tation  put  upon  the  first  section  in  regard  to  suffrage  by  its 
opponents  was  opposed  by  the  second  section.  In  reply  to 
the  objection  that  it  but  repeated  the  principles  of  the  Civil 
Rights  Bill,  Mr.  Dunn  said :  "  Well,  we  propose  to  make 
those  principles  permanent  by  writing  them  in  the  funda- 
mental law."  If  the  Amendment  were  not  adopted,  he 
added,  and  the  Civil  Rights  Bill  should  be  held  unconstitu- 
tional, the  negroes  would  be  in  a  worse  condition. than  before 
their  emancipation.^"  Mr.  Baker  followed  Mr.  Dunn  in  op- 
position to  the  Amendment,  quoting  the  words  of  Senator 
Trumbull  to  the  effect  that  he  hoped  to  see  the  day  when  the 
judges  would  declare  that  the  Civil  Rights  Bill  conferred 
suffrage  on  the  negroes.  He  then  pointed  out  the  similarity 
of  that  bill  to  the  first  section  of  the  Amendment."'^ 

An  advocate  of  the  measure  said  that  suffrage  was  not  a 
privilege  of  citizenship,  and  was  not,  therefore,  conferred 
by  the  first  section.*^*  The  following  significant  declaration 
was  made  by  Mr.  Wolfe  in  explaining  his  vote.  "And  there 
never  has  been  an  Amendment  to  it  [the  Constitution]  but 
it  has  been  to  take  power  from  the  General  Government  and 
to  give  it  to  the  people.  This  Amendment  is  the  reverse  of 
that,  therefore,  I  vote  no.'  "^®  The  statement  that  suffrage 
was  conferred  by  the  first  section  was  denied  by  the  advo- 
cates of  the  Amendment,  but  no  denial  was  made  to  the 
statement  that  negroes  would  be  given  the  right  to  sit  on 
juries,  to  hold  office,  and  to  attend  schools  on  equal  terms 
with  the  whites.  The  previous  question  was  called  and  the 
resolution  agreed  to  by  the  House  January  23,  by  a  vote  of 
55~tb  36.»° 

'Scarcely  any  time  was  given  to  the  consideration  of  the 
Amendment  in  the  General  Assembly  of  Minnesota,  for  the 
resolution  ratifying  it  was  passed  by  the  House  the  same 
day  on  which  it  was  introduced,  the  vote  being  40  to  i^.^"^ 

■*  Ibid.,  p.  89. 

"  Ibid.,  p.  89. 

"Ibid.,  p.  90. 

"  Ibid.,  p.  90. 

"Ind.  House  Journal,   1867,  p.   184. 

"Minn.  House  Journal,  1867,  p.  25. 


1/6        Adoption   of   the  Fourteenth  Amendment. 

The  Senate,  after  refusing  to  submit  it  to  the  Committee, 
concurred  the  next  day,  January  i6,  1867,  by  a  vote  of  16 
to  5.^^  '  The  Governor  had  declared  in  his  message  of  Jan- 
uary 10  that  it  would  secure  equal  civil  rights  to  all  citi- 
zens of  the  United  States.^' 

In  Rhode  Island  the  Senate  ratified  the  Amendment  Feb- 
ruary 5,  1867,  with  only  two  opposing  votes,  the  vote  being 
26  to  2,  while  the  House  ratified  it  two  days  later  by  a  vote 
of  60  to  9.^* 

Wisconsin  and  Pennsylvania  ratified  the  Amendment  on 
the  same  day,  February  13,  1867.  Gov_grnor  Fairchild,  of 
Wisconsin,  in  his  message  January  10,  declared  that  the 
people  were  familiar  with  the  provisions  of  the  Amendment, 
and,  "  With-a-^uiLaf^derstanding  of  them  in  all  their  bear- 
ings," ihad  approvedlthem  by  an  overwhelming  majority. 
He  also  stated  that  it  had  been  the  basis  of  the  campaign 
and  that  most  of  the  members  of  the  Wisconsin  Legislature 
were  there  because  the  people  knew  they  deemed  the 
Amendment  just  and  necessary.®" 

The  minority  of  the  Committee  on  Federal  relations  filed 
a  report  setting  forth  their  objections  to  the  Amendment. 
In  this  report  it  was  stated  that  the  Amendment  would^ive 
Congress  power  to  confer  suffrage  on  the  negroes  and  to 
Jegislate  for  the  citizens  "of  the  several  States  and"" that  it 
WQuld  surrender  certain  rights  and  powers  now  belonging 
to  the  States.  This  surrender,  it  was  declared,  was  made 
by  the  first  section  in  connection  with  the  fifth.  Under  the 
original  Constitution,  the  report  continued,  the  States  re- 
served the  right  to  make  laws  for  the  protection  of  life, 
liberty,  and  property  of  those  within  their  borders,  but  that 
the  first  section  of  the  proposed  Amendment  would  make 
the  Federal  Government  the  arbiter  between  citizens  of  the 

"Minn.  Senate  Journal,  1867,  p.  23. 
"Minn.  Ex.  Doc,  1865-66,  p.  25. 
•*  McPherson,  Reconstruction,  p.  194. 
"Wis.  House  Journal,  1867,  p.  33. 


The  Amendment  Before  the  States.  177 

same  State.  Moreover,  the  Federal  Government  would 
have  the  power  to  judge  state  laws  and  the  manner  in  which 
the  state  authority  was  exercised  over  its  citizens,  thereby 
destroying  the  harmony  between  the  States  and  the  Federal 
Government  and  being  a  long  stride  towards  consolidation. 
It  was  also  declared  that  numerous  rights,  for  example, 
the  enforcement  of  contracts,  the  regulation  of  the  inter- 
course between  citizens,  the  protection  of  life,  liberty,  and 
property,  etc.,  which  were  enjoyed  under  the  States,  would 
be  put  under  the  control  of  the  Central  Government.""  The 
Amendment,  contended  the  minority  in  this  report,  would 
work  a  complete  subversion  of  the  "  fundamental  princi- 
ples upon  which  the  Union  was  founded,"  since  Congress 
would  have  power  to  appoint  Commissioners  and  provide 
Courts  to  determine  whether  any  one  was  being  deprived 
of  his  rights  without  due  process  of  law.  "  If  this  was  not 
the  object  of  this  section  of  the  Amendments,"  it  was 
asked,  "what  other  purpose  or  object  was  sought  by  it?" 
The  report  also  asserted  that  the  "  absolute  rights  of  per- 
sonal security,  personal  liberty,  and  the  right  to  acquire  and 
enjoy  private  property,  descended  to  the  people  of  the  gov- 
ernment as  a  part  of  the  common  law  of  England,"  and 
that  there  was  no  necessity  of  engrafting  into  the  Constitu- 

"  The  report  is  as  follows :  "  The  powers  of  the  Federal  Gov- 
ernment, respecting  the  people  of  the  States,  are  mostly  external 
and  are  seldom  felt  by  the  individual  or  citizen  in  social  or  domestic 
relations.  The  powers  of  the  state  governments  are  constantly 
felt  in  the  regulating  of  our  intercourse  with  each  other;  in  the 
making  of  our  municipal  laws;  in  the  regulating  our  estates;  in 
our  town,  village,  city  and  county  organizations;  in  redressing  our 
wrongs  and  enforcing  our  contracts ;  in  protecting  us  in  life, 
liberty,  and  the  pursuit  of  happiness  as  members  of  society.  In  all 
these  things  the  power  of  the  State  is  supreme.  The  first  section 
of  these  Amendments  aims  a  blow  at  these  powers  of  the  States. 
All  these  rights  which  we  now  enjoy  under  state  authority,  by  it 
are  made  subordinate  to  federal  power. 

"  The  first  section,  in  connection  with  the  fifth,  will  give  the 
Federal  Government  the  supervision  of  all  social  and  domestic  re- 
lations of  the  citizen  in  the  State  and  subordinate  state  govern- 
ments to  federal  power."    Ibid.,  p.  96. 


1/8       Adoption  of  the  Fourteenth  Amendment. 

tion  "nor  shall  any  State  deprive  any  person  of  life,  lib- 
erty, and  property  without  due  process  of  law"  unless  it 
was  intended  to  confer  power  upon  the  Federal  Govern- 
ment. Its  evident  purpose,  it  was  declared,  was  to  be  con- 
strued to  subordinate  state  authority  to  the  Federal  Govern- 
ment, and  by  it  the  independence  and  sovereignty  of  the 
state  judiciary  would  be  destroyed,  and  that  when  this  was 
done,  the  State  would  be  sovereign  in  nothing. 

In  reference  to  the  second  section,  the  report  said  that 
it  was  an  insidious  distinction,  since  it  allowed  the  alien 
non-voters  in  the  North  to  be  counted  while  the  negroes 
would  not,  and  asked  how  Wisconsin  could  insist  upon  it 
when  the  people  had  decided  so  adversely  to  negro  suffrage 
in  1865." 

There  is  no  record  that  these  statements  of  the  minority 
were  denied,  though  the  vote  shows  that  the  majority  either 
did  not  believe  them,  or,  accepting  them,  desired  to  accom- 
plish the  purpose  for  which  the  minority  said  the  Amend- 
ment was  intended.  „.- -' 

f  The  Senate  ratified  the  Amendment  January  23,  1867, 
by  a  vote  of  22  to  10;**  the  House,  February  7,  by  a  vote 
of  69  to  i8.«» 

Governor  Curtin,  of  Pennsylvania^  in  his  message  to  the 
Legislature  January  22,  1867,  re'f erred  to  the  fact  that  the 
people  of  Pennsylvania  had  had  an  opportunity  to  pass  on 
the  Fourteenth  Amendment  and  had  shown  their  approval 
of  it  by  electing  a  large  majority  of  those  who  had  openly 
advocated  it.'^'*  On  the  same  day  that  the  message  was 
received,  a  resolution  was  introduced  in  the  Senate  for  the 
ratification  of  the  Amendment.  Xbis  resolution,,  after  con- 
.siderable  debate,  was  passed  January  11,  1867,  by  a  vote  oT 


"  Ibid.,  pp.  96-103. 

"Wis.  Senate  Journal,  1867,  p.  119. 
Wis.  House  Journal,  1867,  p.  224. 
•Penna.  Senate  Journal,  1867,  p.  16. 


The  Amendment  Before  the  States.  179 

21  to  11.'^^  The  House,  after  a  fairly  full  debate,  con- 
curred in  the  resolution,  February  6,  by  a  vote  of  62  to 
34^^*"  The  Governor  approved  the  resolution,  February  13, 
1867^ 

Tfie  debates  in  the  Pennsylvania  Legislature  were  partici- 
pated in  by  both  parties,  and  on  this  account  are  especially 
valuable.  The  debates  are  given  in  full,  Pennsylvania  being 
the  only  State  which  gave  a  full  account  of  the  debates  at 
that  time.  It  was  the  only  State,  too,  which  gave  any  con- 
siderable time  to  the  discussion  of  the  Amendment. 

Mr.  Connell,  speaking  in  favor  of  the  Amendment,  Jan- 
uary 4,  1867,  quoted  the  law  of  Alabama  for  the  year  1866 
making  it  a  crime,  punishable  by  a  fine  of  not  less  than 
$50.00  or  more  than  $500.00,  for  any  conductor,  station 
agent,  officer,  or  employee  of  any  railroad  to  allow  any 
freedman,  negro  or  mulatto,  except  nurses  with  their  mis- 
tresses, to  ride  in  first-class  passenger  cars.  After  citing 
this  statute,  Mr.  Connell  declared  that  the  adoption  of  the 
Amendment  was  a  political  necessity  on  account  of  the 
state  of  things  in  the  South.'^^  An  opponent  of  the  Amend- 
ment asserted  that  the  people  had  been  deceived  as  to  the 
purpose  of  it,  being  told  that  it  made  voters  the  basis  of 
representation."'* 

Mr.  Wallace,  also  an  opponent  of  the  Amendment,  said 
that  the  first  and  fifth  sections  taken  together  declared  who 

"  Ibid.,  p.  125.  It  may  be  remarked  that  the  only  two  instances 
recorded  of  petitions  laid  before  the  Senate  of  Pennsylvania  in 
opposition  to  the  Amendment,  were  made  by  members  of  the  anti- 
slavery  society  and  by  Mrs.  E.  Cady  Stanton,  Lucy  Stone  and  others 
of  the  Equal  Rights  Association.  The  former's  opposition  no  doubt 
was  due  to  the  fact  that  the  second  section  recognized  the  right 
of  the  States  to  regulate  suffrage — thus  being  able  to  exclude  the 
negro;  the  opposition  of  the  latter  was  due  to  fact  that  suffrage 
was  not  granted  to  women. 

"  Pa.  House  Journal,  1867,  p.  278. 

'*  In  reference  to  this  statute  he  said :  "  Not  much  Shakespeare  in 
that.  That  section  gives  one  a  glimpse  of  the  poetry,  refinement, 
and  humanity  of  Mississippi  (Alabama)  life."  Pa.  Legislative 
Record,  1867,  vol.  II   (Appendix),  p.  3. 

« Ibid.,  p.  s. 


i8o        Adoption   of  the  Fourteenth  Amendment. 

were  citizens  and  conferred  upon  Congress  the  power  to 
protect  that  citizenship.  He  defined  privilege  as  "  every- 
thing that  is  desirable  "  and  immunity  as  "  a  privileged  free- 
dom from  anything  painful,"  and  asserted  that,  under  the 
power  conferred  upon  Congress  by  the  second  clause  of 
section  one,  the  dearest  rights  could  be  bestowed  upon 
negroes.  He  also  maintained  that  Congress  would  be  au- 
thorized to  enact  laws  concerning  the  regulation  and  control 
of  liberty  and  property  and  to  provide  for  the  equal  protec- 
tion of  the  laws.  "  H  this  be  the  power  granted,"  he  added, 
"what  further  need  have  we  of  the  state  government?" 
He  contended  that,  even  if  concurrent  jurisdiction  were 
granted  to  the  States  and  to  the  Federal  Government,  the 
latter  would  be  superior,  since  it  would  have  the  right  to 
review  the  state  jurisdiction.'^^ 

An  advocate  of  the  Amendment  said  that  the  first  section 
guaranteed  "  state  rights  to  every  human  being,"  evidently 
having  reference  to  the  rights  which  were  in  the  Bill  of 
Rights  in  the  several  States.  He  also  said  that  this  section 
gave  sanction  or  authority  to  the  Civil  Rights  Bill,  though 
he  thought  that  bill  constitutional  without  this  section.'^* 

Mr.  Davis,  an  opponent  of  the  Amendment,  declared  that 
the  people  had  not  decided  for  it  in  the  last  election,  since 
the  issue  presented  to  them  had  been  negro  suffrage  in 
some  instances,  while  in  others  it  had  been  the  validity  of 
the  United  States  bonds.  He  said  that  good  Republicans 
had  admitted  and  claimed  that  their  success  was  due  almost 
entirely  to  the  immense  amount  of  United  States  securities 
held  by  the  people,  "  and  to  the  adroit  manner  in  which  that 
trump  card  was  played."  He  also  stated  it  as  his  belief 
that  thousands  of  ignorant  men  were  induced  to  vote  the 
Republican  ticket  by  being  told  and  made  to  believe  that 
the  success  of  the  Democrat  party  would  render  the  gov- 

"  Ibid.,  p.  13.  '  ~~ 

"  Ibid,  p.  16. 


The  Amendment  Before  the  States.  i8i 

ernment  bonds  worthless,  but  that  this  belief  was  not  enter- 
tained for  a  moment  by  the  shrewd  men  who  played  the 
trick.  The  mass  of  the  people,  he  asserted,  also  believed 
that  the  Amendment  was  to  base  representation  on  voters — 
this  view  having  been  presented  by  the  speakers  in  favor 
of  the  Amendment.  But  the  issue  was,  in  his  opinion, 
whether  the  ideas  of  Jefferson  or  those  of  John  Adams  were 
to  prevail ;  whether  we  were  to  continue  to  have  a  Federal 
Union  of  States  or  to  have  a  grand  central,  consolidated 
Government  under  which  the  domestic  laws  of  the  States 
would  be  decided  by  Congress.  "  The  issue  is,  whether  the 
Constitution  of  the  United  States  or  the  will  of  Congress 
shall  be  the  supreme  law  of  the  land."  '^'^ 

Another  Senator  declared  that  the  Amendment  struck  at 
the  very  foundation  stone  of  our  republican  form  of  gov- 
ernment. The  first  section  was  to  meet  the  doctrine  enun- 
ciated in  the  Dred  Scott  decision  and  to  validate  the  Civil 
Rights  Bill.  Under  this  section,  he  continued.  Congress 
might  declare  suffrage  to  be  a  privilege,  since  it  was  sus- 
ceptible of  that  interpretation.  He  cited  the  case  of  Cor- 
field  vs.  Coryell  (4  Wash.  Cir.  Court  Repts.,  p.  389)  to 
show  that  the  Court  had  considered  the  franchise  a  privi- 
lege. The  fourth  section  was  inserted,  he  declared,  to 
secure  votes.  Of  the  fifth  section  he  said,  "If  we  are  to 
judge  the  future  by  the  past,  I  shall  never  vote  to  give 
Congress  any  such  power.  All  the  dangers  that  threaten 
republican  institutions  are  centered  in  the  Congress  of  the 
United  States.  ...  I  will  never  vote  to  enlarge  their  pow- 
ers. If  I  did,  I  would  do  it  under  the  conviction  that  I  was 
voting  against  the  life  of  the  Republic."  "^^ 

In  reply  to  the  argument  of  Democrats  that  the  Amend- 
ment was  an  invasion  of  State  Rights,  it  was  said  that  the 
right  to  define  the  qualifications  of  suffrage  was  not  neces- 

"  Ibid.,  p.  iS. 
"Ibid.,  pp.  23-26. 


1 82        Adoption   of   the  Fourteenth  Amendment. 

sarily  one  of  the  reserved  rights  of  the  States,  and  that  the 
argument  was  invalid  anyway,  since  the  Constitution  pro- 
vided that  three  fourths  of  the  States  could  alter  it  J®  This 
was  an  admission  on  the  part  of  a  Republican  that  Q)ngress 
would  have  the  right  to  declare  that  suffrage  was  a  privi- 
lege, and  therefore  to  define  its  qualifications.  This  was 
not  generally  admitted  by  them,  however,  the  question  either 
being  avoided  or  the  assertion  of  the  minority  denied. 

An  opponent  asserted  that  not  only  would  Congress  be 
empowered  to  regulate  the  franchise,  but  that  it  would  re- 
sult in  the  taking  of  other  rights  from  the  States,  since  the 
efforts  of  the  Republicans  were  to  centralize  the  Govern- 
ment.®" An  eminent  statesman  (Mr.  Browning)  was 
quoted  as  saying  that  the  Amendment  would  change  the 
entire  structure  and  texture  of  the  Government  and  sweep 
away  all  the  guarantees  provided  by  the  framers  of  the 
Constitution.  The  speaker  then  asked  whether  any  ra- 
tional man  could  doubt  those  facts.^^  A  Republican  went 
so  far  as  to  declare  that  Congress  had  the  power  to  change 
the  status  of  the  States  if  the  weal  of  the  country  made  it 
necessary  or  desirable;  that  the  power  of  the  age  and  the 
country  was  in  Congress,  as  representing  the  millions  of 
men  who  had  saved  the  Government  and  that  it  was  both 
their  "  prerogative  and  duty  to  do  anything  and  everything 
that  the  peace  and  perpetuity  of  the  country  require  and 
demand."  ^^  This  was  undoubtedly  an  extreme  view — one 
to  which  only  the  veriest  Radicals  would  subscribe,  but  it 
showed  the  spirit  of  some  of  the  men  of  the  time,  and  the 
speaker  undoubtedly  thought  the  Amendment  was  making 
more  sure  the  powers  which  he  asserted  belonged  to  Con- 
gress. 

Speaking  on  another  occasion,  one  of  the  Senators  said 

"Ibid.,  p.  32. 
"Ibid.,  p.  35. 
« Ibid.,  p.  38. 

"Ibid.,  p.  37. 


The  Amendment  Before  the  States.  183 

that  Philadelphia  was  the  only  city  which  did  not  allow 
negroes  to  enter  street  cars,  and  that  this  was  contrary  to 
the  Republican  doctrine  that  all  should  be  equal  before  the 
law.®* 

The  debate  in  the  House  was  of  a  nature  very  similar  to 
that  in  the  Senate.  It  was  asserted  by  an  opponent  of  the 
measure  that  it  placed  the  regulation  of  the  civil  relations 
of  each  State  under  the  control  of  the  Federal  Govern- 
ment ;  that  the  States  were  to  act  only  as  the  agents  or  in- 
struments to  enforce  the  federal  will,  and  that  almost  the  en- 
tire civil  and  criminal  jurisprudence  of  the  States  was  placed 
under  the  control  of  Congress.  He  also  declared  that  it 
was  not  necessary,  in  considering  the  proposition,  to  examine 
the  question  as  to  what  relations  the  citizens  of  the  States 
ought  to  sustain  to  each  other,  but  that  the  only  question 
raised  by  it,  was  whether  it  would  be  better  to  give  the  Fed- 
eral Government  the  power  asked  for  by  the  Amendment,  or 
to  leave  it  where  it  then  was,  with  the  States.  He  thought 
it  should  be  the  object  of  all  to  narrow  the  grounds  of  con- 
troversy between  the  States,  but  that  just  the  opposite  would 
be  accomplished  by  the  proposed  Amendment,  since  sub- 
jecting the  affairs  of  each  State  to  the  control  of  Congress 
would  enlarge  the  field  of  controversy.  He  then  cited  the 
second  section  of  the  Civil  Rights  Bill  as  an  illustration  of 
the  manner  in  which  Congress  would  exercise  its  power  to 
regulate  the  affairs  of  the  States,  and  added :  "  Under  this 
section  the  executive,  the  legislative,  and  judicial  officers  of  a 
State  m^y  be  convicted  and  punished  as  criminals.  All  are 
subjected  to  the  supreme  law  of  the  Congressional  will, 
which  is  exercised  alike  in  determining  the  construction  of 
state  laws  as  well  as  in  prescribing  the  punishment  of  those 
who  execute  them."®*  Mr.  Kurtz,  an  opponent  of  the 
Amendment,  believed  that  the  first  clause  would  give  suf- 
frage to  negroes,  but  whether  this  clause  would  ipso  facto 

"*  Ibid.,  p.  84.  "  Lawful  equality  must  everywhere  be  freely  sanc- 
tified throughout  this  land  or  we  perish.  If  he  (the  negro)  fills 
our  pulpits,  our  school-houses,  our  academies,  our  colleges,  and  our 
Senate  Chambers,  I  bid  him  God  speed." 

**  Ibid.,  p.  41. 


184        Adoption  of  the  Fourteenth  Amendment. 

confer  that  right  might  be  a  question,  he  said,  but  that  it  was 
quite  certain  that  the  first  section,  taken  together  as  a  whole, 
would  give  Congress  the  power,  by  simple  statute,  to  confer 
it.  It  was  pointed  out  that  nowhere  in  the  Constitution  or  in 
the  proposed  Amendment  was  there  a  catalogue  or  enumer- 
ation of  the  "  privileges  and  immunities  "  of  citizens  which 
the  States  were  prohibited  from  abridging  by  the  second 
clause  of  section  one.  Mr.  Kurtz  then  asked :  "  In  case  of 
dispute,  where  exists  the  authority  to  define  these  '  privileges 
and  immunities  '  ?"  The  answer  was  to  be  found  in  the  fifth 
section,  he  declared,  which  undoubtedly  conferred  the  power 
upon  Congress,  and  that  under  that  section  Congress  could 
also  "  impose  penalties  upon  all  who,  under  the  authority  of 
any  pretended  state  law,  should  deny  or  abridge  these  privi- 
leges and  immunities."  A  law  of  Congress,  therefore,  he 
asserted,  declaring  that  suffrage  was  a  privilege,  would  be 
constitutional.  He  furthermore  opposed  the  Amendment, 
because,  by  it,  all  the  legal  barriers  theretofore  existing  be- 
tween the  white  and  black  races  would  be  removed,  and  that 
opportunities  and  inducements  would  be  given  for  the  asso- 
ciation and  commingling  of  the  races  on  such  terms  of 
equality  as  would  "  naturally  result  in  the  gradual,  but  cer- 
tain, blending  of  the  two  races  into  one  mixed  race  or 
people."  ^' 

Mr.  Mann,  an  advocate  of  the  Amendment,  said  that  it 
would  enable  the  Federal  Government  to  accomplish  the  ob- 
ject for  which  the  founders  of  the  Republic  declared  that  all 
governments  were  established,  namely,  to  protect  all  its  citi- 
zens in  their  rights  of  life,  liberty,  and  property.®*  Two 
Democrats  thought  that  it  would  confer  suffrage  on  the 
negroes  and  make  them  the  political  and  social  equals  of  the 
whites.®'^  A  Republican  thought  that  it  was  necessary  to 
adopt  the  Amendment  to  secure  peace  and  freedom,  includ- 
ing the  freedom  of  speech.®^     Still  another  supporter  of  the 

« Ibid.,  p.  52. 
■*  Ibid.,  p.  48. 
"^  Ibid.,  pp.  54,  60. 
^  Ibid.,  p.  55. 


The  Amendment  Before  the  States.  185 

Amendment  declared  that  it  was  proposed  to  write  the  Civil 
Rights  Bill  in  the  Constitution  and  to  put  the  inalienable 
rights  enunciated  in  the  Declaration  of  Independence  in  the 
organic  law.®® 

Mr.  Deise,  a  Democrat,  asserted  that  it  was  a  question  of 
centralization,  and  that  the  rights  of  the  first  section  were 
already  safeguarded  in  better  form  by  every  State  of  the 
Union  unless  it  was  intended  to  confer  suffrage  on  the 
negroes.  In  reference  to  the  fifth  section  he  said  that  a 
similar  provision  of  the  Thirteenth  Amendment  had  been 
made  the  pretext  of  unlimited  appropriations  for  bureaus 
and  the  passage  of  the  Civil  Rights  Bill.  "  Appropriate  leg- 
islation "  was  the  invention  of  Sumner,  he  declared,  and  cov- 
ered a  vast  deal  of  ground  and  involved  the  expenditure  of 
great  sums  of  money.  He  was,  therefore,  opposed  to  any 
more  "  appropriate  legislation."®" 

Another  Democrat,  Mr.  Chalfant,  sanctioned  all  that  had 
been  said  in  regard  to  the  danger  of  the  first  section,  though 
he  regarded  the  fourth  section  as  harmless.  This  section 
had,  however,  he  declared,  been  used  to  draw  attention  away 
from  the  important  sections,  and  he  predicted  that  the 
people  would  later  be  astonished  at  what  had  been  accom- 
plished.®^ 

Mr.  Jones,  also  an  opponent  of  the  Amendment,  took  the 
position  that  it  should  be  considered  only  as  to  its  effect  upon 
Pennsylvania.  This  was  a  somewhat  narrow  position,  but  it 
was  evidently  the  view  really  taken  by  most  of  the  States, 
especially  in  regard  to  the  second  section.  Mr.  Jones  de- 
clared that  the  first  two  clauses  of  section  one  deprived  Penn- 
sylvania of  all  legislative  power  and  conferred  it  upon  Con- 
gress, and  that  consequently  there  would  be  little  necessity 
of  having  a  Legislature  for  the  State  if  it  were  adopted.  By 
the  last  clause  of  that  section,  he  continued,  the  State  would 
not  be  allowed  to  be  the  judge  of  its  own  laws,  even  in 

"  Ibid.,  p.  60. 
°» Ibid.,  p.  68. 
"  Ibid.,  p.  82. 


1 86        Adoption  of  the  Fourteenth  Amendment. 

criminal  proceedings,  since  it  gave  the  Federal  Courts  the 
power  to  determine  whether  a  man  was  imprisoned  unjustly 
or  whether  he  was  deprived  of  his  life,  liberty,  or  property 
without  due  process  of  law.  He  also  contended  that  the 
rights  and  prerogatives  of  the  State  would  be  surrendered 
to  the  Federal  Government  without  receiving  anything  in  re- 
turn for  that  surrender.  Congress  would,  moreover,  have 
the  power  to  enforce  the  Amendment  by  appropriate  legisla- 
tion and  itself  to  determine  what  was  "  appropriate  legis- 
lation." He  concluded  by  saying  that  Pennsylvania  would 
lose  one  representative  under  the  second  section  unless  suf- 
frage was  given  to  the  negroes.®^ 

The  speeches  of  many  of  the  Republicans  did  not  bear 
upon  the  Amendment  itself,  but  were  confined  to  declarations 
that  it  was  a  light  punishment  for  traitors  and  rebels,  that 
the  national  debt  must  be  made  secure,  that  the  rebel  debt 
should  not  be  paid,  and  that  rebels  and  copperheads  must  not 
be  permitted  to  get  control  of  the  Government.  The  de- 
bates were  sufficient,  however,  to  show  that  the  intention  and 
purpose  of  the  Amendment  were  understood  to  confer  addi- 
tional powers  upon  Congress  and  to  authorize  such  measures 
ag  the  Civil  Rights  Bill. 
/^  The  Amendment  found  little  opposition  in  Michigan,  be- 
ing ratified  by  the  Senate  January  15,  1867,  by  the  almost 
unanimous  vote  of  25  to  i.**  On  the  next  day,  without  any 
reference  to  a  committee,  the  Senate  resolution  was  agreed 
to  by  the  House  by  a  vote  of  yy  to  15."* 

Several  petitions  were  presented  to  the  General  Assembly 
of  Massachusetts  against  the  adoption  of  the  Amendment, 
but  notwithstanding  this  as  well  as  the  fact  that  the  Commit- 
tee on  Federal  Relations  recommended  that  it  be  referred  to 
the  next  General  Assembly,  the  Amendment  was  ratified  by 
the  House  March  15,  1867,  the  minority  report  (Republican 
also)  being  substituted  for  that  of  the  majority  by  a  vote  of 

■"Ibid.,  p.  97.  ^         ■-'^-   ■■, 

"Mich.  Senate  Journal,  1867,  p.  125.  J 

•*Mich.  House  Journal,  1867,  p.  181. 


The  Amendment  Before  the  States.  187 

120  to  22.°'*     The  Amendment  was  then  adopted  by  a  vote 
"of  120  to  20,^^ 

The  majority  report  of  the  Committee,  except  so  much 
of  It  as  related  to  the  postponement  of  the  Amendment,  was 
adopted.  The  reason  for  the  postponement  desired  by  the 
majority  of  the  Committee  was  due  to  the  second  section, 
whichjit  was  claimed,  conceded  the  right  of  the  Southern 
States  to  disfranchise  the  negroes,  and  that  Massachusetts 
would  lose  by  it  on  account  of  her  educational  and  tax  quali- 
fications for  suffrage.®'^    / 

The  Committee,  in  it/ report,  stated  that  the  first  section 
was  already  in  the  Constitution  and  was  to  be  found  in  the 
second  and  fourth  sections  of  Article  Four,  and  in  the  First, 
Second,  Fifth,  Sixth  and  Seventh  Amendments.  If  these 
provisions  were  fairly  construed,  said  the  Committee,  they 
would  secure  everything  which  the  first  section  attempted 
to  do.     After  quoting  these  provisions,  the  report  continues  : 

"  Nearly  every  one  of  the  Amendments  to  the  Constitu- 
tion grew  out  of  a  jealousy  for  the  rights  of  the  people, 
and  is  in  the  direction,  more  or  less,  of  a  guarantee  of  human 
rights. 

"  It  seems  difficult  to  conceive  how  the  provisions  above 
quoted,  taken  in  connection  with  the  whole  tenor  of  the  in- 
strument, could  have  been  put  into  clearer  language,  and, 
upon  any  fair  rule  of  interpretation,  these  provisions  cover 
the  whole  ground  of  section  one  of  the  proposed  Amend- 
ment." 

The  first  clause  of  the  section  was  considered  unnecessary^ 
by  the  Committee  in  view  of  the  opinion  of  Attorney  Gen-, 
eral  Bates  that  negroes  were  already  citizens.  It  was  also 
declared  that  legal  authorities  were  not  agreed  as  to  what 
constituted  state  citizenship  apart  from  federal  citizenship, 
and  that  that  part  of  the  Amendment  "  and  of  the  State 
wherein  they  reside  "  would  be  of  no  effect  anyway,  since 

°*  Mass.  House  Journal,  1867,  p.  207. 
^  McPherson,  Reconstruction,  p.  194. 

■"Ibid.,  p.  202,  and  Legislative  Documents  of  the  House  (Mass.), 
1867,  Doc.  No.  149. 


1 88        Adoption  of  the  Fourteenth  Amendment. 

none  of  the  provisions  of  the  Amendment  were  to  apply  to 
persons  as  citizens  of  a  State. 

While  the  last  clause  of  the  section  was  not  in  the  Con- 
stitution in  the  same  words,  the  Committee  said  that  the  de- 
nial of  equal  protection  of  the  laws  "  would  be  a  flagrant 
perversion  of  the  guarantees  of  personal  rights  which  we 
have  quoted."  In  answer  to  the  general  argument  that 
such  denial  had  existed  notwithstanding  those  guarantees, 
the  Committee  replied  that  this  would  be  possible  under 
the  Amendment.  The  Committee  then  concluded  that  the 
Amendment  was  mere  surplusage  at  best,  and  mischievous 
in  that  it  was  an  admission,  "  either  that  the  same  guaran- 
tees do  not  exist  in  the  present  Constitution,  or  that  if  they 
are  there,  they  have  been  disregarded,  and,  by  long  usage 
or  acquiescence,  this  disregard  has  hardened  into  constitu- 
tional right;  and  no  security  can  be  given  that  similar 
guarantees  will  not  be  disregarded  hereafter."  ^^ 

This  report  is  entirely  different  from  any  other  that  we 
have  found,  for  it  was  made  by  Republicans,  and  cannot, 
therefore,  be  said  to  be  partisan  in  the  s^nse  that  the  same 
statements  made  by  Democrats  were.  It  is  also  valuable 
from  the  fact  that  it  shows  that  the  Senate  of  Massachusetts, 
in  adopting  it,  accepted  the  statements  made  in  it  that  the 
first  section  was  but  a  reiteration  of  the  guarantees  enum- 
erated in  the  Amendments.  The  Senate  ratified  the  Amend- 
ment March  20,  1867,  the  vote  being  27  to  6.^^ 

Governor  Bullock,  had  on  January  4,  in  his  message  to  the 
General  Assembly,  declared  that  the  first  section  was  to 
secure  to  all  citizens  civil  equality  before  the  law  and  to 
protect  them  from  any  state  legislation  which  abridged  their 
privileges  or  deprived  them  of  life,  liberty,  or  property  with- 
out due  legal  process.  He  also  said  that  it  was  adopted  by 
Congress  to  give  certain  and  enduring  effect  to  the  Civil 
Rights  Bill,  and  that  whatever  reasons  there  were  for  the 
enactment  of  that  bill,  were  doubly  applicable  to  the  incor- 

"Ibid.,  Doc.  No.  149. 

"  McPherson,  Reconstruction,  p.  194,  Mass.  Senate  Journal  not 
printed  according  to  card  catalogue  of  Library  of  Congress. 


The  Amendment  Before  the  States.  189 

poration  of  its  provisions  into  the  fundamental  law  of  the 
country.  Its  reaffirmation  in  this  form  was  necessary,  he 
continued,  to  the  end  that  neither  the  executive  nor  judicial 
power,  nor  the  local  authorities,  might  render  inoperative 
the  deliberate  verdict  of  the  people,  "  that  no  one  should  be 
denied  of  their  privileges  and  immunities."^**" 
/'At  the  third  session  of  the  Legislature  of  Nebraska,  which 
''had  but  recently  become  a  State,  the  Amendment  was  rati- 
fied by  the  House  on  June  10,  1867,  the  vote  being  26  to 
'^  The  Senate  rejected  the  motion  to  submit  the  ques- 
tion to  the  people,  and  adopted  the  resolution  by  a  vote  of  8 


Thus  within  a  year  from  the  time  the  Amendment  was 
submitted  to  the  States,  twenty-two  had  ratified  it,  being  more 
than  three  fourths  of  the  so-called  "  loyal  States."  These 
were  not  regarded  as  sufficient,  however,  by  the  great  ma- 
jority of  the  people.  There  followed  quite  a  long  interval 
before  another  State  gave  its  sanction  to  the  Amendment, 
for  not  until  the  spring  of  1868  did  Iowa  ratify  the  Amend- 
ment. The  lower  House  of  the  General  Assembly  of  that 
State  ratified  it  January  27,  1868,  the  day  on  which  the  reso- 
lution proposing  it  was  introduced,  by  a  vote  of  68  to  12.^°^ 
The  Senate  agreed  to  this  resolution,  apparently  without  any 
debate,  on  March  9,  the  vote  being  34  to  9.^"* 

Nearly  two  years  had  gone  by  since  the  Amendment  had 
been  submitted  and  the  assent  of  the  necessary  three  fourths 
was  still  wanting.  Thus  far  not  a  single  State  of  the  section 
which  would  be  most  affected  by  the  Amendment  had  given 
its  assent  to  it,  with  the  exception  of  Tennessee.  And  in 
the  case  of  Tennessee  it  may  be  said  that  it  had  been  ratified 
against  the  will  of  the  people  of  that  Statq/  The  other  States 
almost  unanimously  rejected  it.  Within  this  time  Ohio  had 
withdrawn  her  assent,  thereby  giving  rise  for  the  first  time 

"•Legislative  Documents  of  the  Senate   (Mass.),  1867,  Doc.  No. 
I,  p.  67. 
^  Nebraska  House  Journal,  1867,  p.  148. 
^'"Neb.  Senate  Journal,  1867,  pp.  163,  174. 
"*  la.  House  Journal,  1868,  p.  132. 
^Ta.  Senate  Journal,  1868,  p.  264. 


190       Adoption  of   the   Fourteenth  Amendment. 

to  the  question  whether  a  State  could  withdraw  its  ratifica- 
tion of  the  Amendment  before  three  fourths  of  the  States  had 
ratified  it.  New  Jersey  soon  followed  the  example  set  by 
Ohio,  while  Oregon  did  likewise  the  following  fall.  The 
border  States  of  Maryland,  Delaware  and  Kentucky  had 
also  rejected  the  Amendment.  ^ — 

[n  the  spring  of  1868,  however,  the  array  of  the  solid 
South  was  broken,  Arkansas  being  the  first  to  ratify.  In 
order  to  preserve  the  continuity  of  the  narrative,  the  rejec- 
tion of  the  Amendment  by  the  border  and  Southern  States 
will  be  considered  after  we  have  given  an  account  of  the 

ification  by  those  States^ 

Arkansas  was  the  only  State  which  ratified  £He~Ame»4— 
ment  by  a  unanimous  vote  in  both  Houses.     The  vote  in  the 
Senate  April  6,  1868,  was  23  to  o,  while  that  in  the  House  a 
week  later  was  56  to  0.^°° 

The  Legislature  of  Florida,  which  assembled  June  8, 
T868,  lost  no  time  in  giving  its  assent  to  the  Amendment,  for 
both  Houses  passed  resolutions  to  that  effect  the  next  day; 
in  the  House  by  a  vote  of  23  to  6 ;  ^°'^  in  the  Senate  by  a  vote 
of  10  to  3.^°^  An  extra  session  of  the  North  Carolina  Leg- 
islature was  called  by  Governor  Holden.  The  members  of 
the  Legislature  were  elected  under  an  order  of  General  Canby, 
who  had  charge  of  the  Military  District  of  North  and  South 
Carolina.  The  North  Carolina  Assembly  acted  with  the 
same  promptness  that  was  shown  in  Florida,  for  it  met  July 
I,  1868,  and  on  the'  next  day  both  Houses  ratified  the 
Amendment.  The  vote  in  the  Senate  was  34  to  2  ;^°^  in  the 
House  82  to  19,^°*  Louisiana  and  South  Carolina  followed 
soon  after,  both  ratifying  it  July  9,  1868.  In  South  Caro- 
lina, the  vote  in  the  Senate,  July  8,  1868,  was  23  to  5,"° 
while  that  in  the  House  the  next  day  was  108  to  12.^"     In 

^"^  McPherson,  Reconstruction,  p.  353^ 
^"•Fla.  House  Journal,  1868,  p.  9. 
'""Fla.  Senate  Journal,  1868,  p.  8. 

N.  C.  Senate  Journal,  1868,  p.  15. 

N.  C.  House  Journal,  1868,  p.  15. 

S.  C.  Senate  Journal,  1868,  p.  12. 

S.  C.  House  Journal,  1868,  p.  50. 


IM 


The  Amendment  Before  the  States.  191 

the  Senate  of  Louisiana  the  vote  was  22  to  11,  July  9.^" 
Alabama  was  added  to  the  list  of  the  ratifying  States  four 
days  later,  while  Georgia  on  the  21st  of  the  same  month,  was 
the  last  State  to  ratify  before  the  final  proclamation  of  the 
Secretary  of  State,  announcing  that  the  Amendment  had  been 
ratified.  Both  Houses  of  the  Georgia  Assembly  ratified  the 
Amendment  on  the  same  day,  the  vote  in  the  House  being 
89  to  71,^^^  while  that  in  the  Senate  was  not  given.  The 
States  of  Virginia,  Mississippi  and  Texas  ratified  it  after  it 
had  been  declared  a  part  of  the  Constitution.  In  Virginia, 
the  vote  in  the  Senate  October  7, 1869,"*  was  34  to  4;  and  in 
the  House  next  day,  126  to  6,^^"  Mississppi  ratified  it  Jan- 
uary 17,  1870,  by  a  vote  of  23  to  2  in  the  Senate,  and  87  to 
6  in  the  House."^     Texas  ratified  it  February  18,  1870.^^^ 

Texas  was  the  first  to  reject,  as  well  as  the  last  to  ratify, 
tiie  Amendment.  The  House  Committee  on  Federal  Rela- 
tions reported  adversely  as  to  the  Amendment,  October  13, 
1866.     In  their  report,  the  Committee  declared  that  the  first 

"*La.  Senate  Journal,  1868,  p.  21. 

"•Ga.  House  Journal,  1868,  p.  50. 

"*Va.  Senate  Journal,  1869,  p.  27. 

""Va.  House  Journal,  1869,  p.  37. 

"'  Gamer,  Reconstruction  in  Miss.,  p.  271. 

"*  Documentary  History  of  the  Constitution,  vol.  II,  pp.  779-793. 

Secretary  Seward,  in  his  conditional  proclamation  of  July  20, 
1868,  after  enumerating  the  States  whose  Legislatures  had  ratified 
the  Amendment,  stated  that  it  had  also  "  been  ratified  by  newly 
constituted  and  newly  established  bodies  avowing  themselves  to  be, 
and  acting  as  Legislatures  respectively  of  the  States  of  Arkansas, 
Florida,  North  Carolina,  Louisiana,  South  Carolina,  and  Alabama." 
It  was  also  stated  in  the  proclamation  that  the  Legislatures  of 
Ohio  and  New  Jersay  had  passed  resolutions  withdrawing  their 
consent,  but  that  if  the  resolutions  of  these  States  "  ratifying  the 
aforesaid  Amendment  are  to  be  deemed  as  remaining  of  full  force 
and  eflfect,  notwithstanding  the  subsequent  resolutions  of  the  Legis- 
latures of  those  States  which  purport  to  withdraw  the  consent  of 
the  said  States  from  such  ratification,  then  the  aforesaid  Amend- 
ment has  been  ratified  in  the  manner  hereinbefore  mentioned  and  so 
has  become  valid  to  all  intents  and  purposes  as  a  part  of  the 
Constitution  of  the  United  States." 

On  the  next  day  Congress  passed  a  resolution  declaring  that  the 
Amendment  had  been  ratified.  Secretary  Seward  then  issued  the 
final  categorical  proclamation,  July  28,  1868,  declaring  the  Amend- 
ment a  part  of  the  Constitution. 


192        Adoption  of  the   Fourteenth  Amendment. 

section  would  take  away  from  the  States  a  right  which  they 
had  possessed  since  1776, — -the  right  to  determine  what 
should  constitute  their  own  citizenship.  The  object  of  this, 
it  was  asserted,  was  to  confer  citizenship  upon  the  negroes 
who  would  thereby  be  entitled  to  all  the  "privileges  and 
immunities  "  of  white  citizens,  among  which  were  suffrage, 
participation  in  jury  service,  bearing  arms  in  militia  and 
others  which  did  not  need  enumeration.  The  negroes  were 
excluded  from  these  privileges  by  law  in  most  of  the  orig- 
inal free  States,  said  the  Committee,  and  in  all  of  them  by 
immemorial  usage.  There  was  scarcely  any  limitation  to 
the  powers  sought  to  be  conferred  upon  the  Federal 
Government  by  the  first  section,  continued  the  report, 
since  Congress  might  declare  almost  anything,  even  mis- 
cegenation to  be  a  privilege  or  immunity  of  a  citizen 
of  the  United  States,  which  would  thereupon  immediately 
attach  to  every  citizen  in  every  State.  On  the  same  day 
that  this  report  was  made  the  House  rejected  the  Amend- 
ment by  a  vote  of  70  to  5.^^^  The  Senate  Committee  on 
Federal  Relations  made  a  report  very  similar  to  that  made 
in  the  House.  The  Amendment  only  received  one  vote  in 
the  Senate,  the  vote  being  27  to  i  against  ratification.^^* 

Governor  Jenkins,  of  Georgia,  an  old-line  whig,  opposed 
the  Amendment  in  his  message.  His  objection  to  the  first 
section  was  that  it  centralized  power  in  the  Legislative 
Department  of  the  Government  by  giving  Congress  the 
right  to  settle  definitely  the  question  of  citizenship  in  the 
States.  He  declared  that  under  the  fifth  section  Congress 
would  contend  that  it  was  the  proper  judge  of  what  con- 
stituted "  appropriate  legislation,"  so  that  no  vestige  of 
hope  would  remain  for  the  Southern  people  "  if  this  Amend- 
ment were  adopted."  "<>    The  House  rejected  it  by  a  vote 

"I  Texas  House  Journal,  1866,  pp.  578-584. 
^  Texas  Senate  Journal,  1866,  p.  471. 
""Charleston  Courier,  November  7,  1866. 


The  Amendment  Before  the  States.  193 

of  147  to  2/2^  and  the  Senate  unanimously  (38  to  o),  on 
^TSTovember  9,  1866."^ 

JprJtrnoT  Walker,  of  Florida,  on  November  14,   1866,         "P 
niitted  the  Amendment  to  the  Legislature  with  a  mes-  * 

"^ge  advising  its  rejection.  The  first  and  fifth  sections,  he 
declared,  conferred  upon  Congress  the  power  of  legislating 
about  everything  that  touched  "  the  citizenship,  life,  liberty, 
or  property  of  every  individual "  in  the  country,  and  made 
the  existence  of  the  Government  of  the  States  of  no  further 
usey/"  It  is  in  fact,"  he  continued,  "  a  measure  of  consoli- 
dation entirely  changing  the  form  of  the  Government." 
The  Amendment  gave  to  Congress  all  the  powers  which  had 
previously  been  exercised,  he  said,  by  the  States  over  the 
affairs  of  individuals.  He  also  pointed  out  that  to  vote  for 
the  Amendment  would  be  to  vote  for  the  destruction  of  the 
Government  of  the  State,  since  it  would  disfranchise  the 
most  capable  men  of  the  State.^^'  The  House  Committee 
on  Federal  Relations  took  about  the  same  position  as  that 
taken  by  the  Governor,  for  in  its  report,  November  23,  it 
was  stated  that  the  first  and  last  sections  practically  an- 
nulled the  authority  of  the  States  in  regard  to  the  rights  of 
citizenship.  It  was  also  the  opinion  of  the  committee  that 
the  elective  franchise  and  the  right  to  serve  as  jurors  would 
be  considered  privileges.  Congress  would  also  have  the 
power,  under  the  Amendment,  said  the  committee,  to  annul 
state  laws  affecting  the  life,  liberty  and  property  of  the 
people  whenever  it  "  should  deem  them  subject  to  the  ob- 
jections therein  specified."  Since  the  Amendment  would 
affect  the  general  interests  of  all  the  people  of  the  Union, 
the  committee  was  unable  to  see  how  any  State  could  vol- 
untarily invest  Congress  with  such  extraordinary  power, 
the  whole  tendency  of  which  was  to  the  consolidation  of 

^  Georgia  House  Journal,  1866,  p.  68. 
"*  Georgia  Senate  Journal,  1866,  p.  72. 
"'Florida  Senate  Journal,  1866,  p.  8. 

13 


194       Adoption  of   the  Fourteenth  Amendment. 

the  Government.  Moreover,  the  sections  were  objected  to 
as  being  couched  in  language  that  was  too  "  general  and 
questionable."  "*  The  Amendment  was  rejected  unani- 
mously (49  to  o)  by  the  House,  December  i,  1866.^"^ 

The  Senate  Committee  was  equally  as  emphatic  as  that 
of  the  House,  for  in  its  report,  December  3,  it  was  declared 
that  the  States  would  cease  to  exist  as  bodies  politic  from 
the  moment  the  Amendment  was  engrafted  upon  the  Con- 
stitution, since  Congress  would  be  endowed  by  it  with  all 
the  powers  which  had  belonged  to  the  States  prior  to  that 
time.  A  great  central  power  at  Washington  would  thus  be 
created,  it  was  asserted.  Under  the  first  section  alone 
Congress  could  subvert  and  change  the  whole  economy  of 
the  State,  said  the  report,  whether  the  people  of  that  State 
approved  it  or  not,  for  it  was  appalling  to  think  what  power 
might  be  seized  and  exercised  under  the  head  of  "  appro- 
priate legislation."  The  Committee  was  also  unwilling  to 
surrender  the  right  of  the  State  to  determine  who  should 
exercise  the  right  of  franchise  within  its  limits.^^*  The 
Senate  unanimously    (20  to  o)    concurred  in  the  House 

resolution   the    same   day   that   its    Committee   made   this 
(L.^  report.^" 

|-  i^  The  message  of  Governor  Patton,  of  Alabama,  November 
■/  2,  1866,  was  very  similar  in  substance  to  that  of  Governor 
"Walker.  In  this  message  he  advised  against  the  ratifica- 
tion of  the  Amendment  on  the  ground  that  the  first  section 
was  of  vast,  if  not  dangerous,  import,  for  by  it  the  judicial 
powers  of  the  General  Government  would  be  greatly  en- 
hanced, overshadowing  and  weakening  the  authority  and 
influence  of  the  state  courts.  It  might  also  be  possible,  he 
said,  to  reduce  the  latter  to  a  nullity,  since  the  Federal  Courts 
would  be  given  complete  and  unlimited  jurisdiction  over 

"^^  Florida  House  Journal,  1866,  p.  76. 
"*  Ibid.j  p.  ISO. 

'^' Florida  Senate  Journal,  1866,  p.  102. 
^  Ibid.,  p.  III. 


The  Amendment  Before  the  States.  195 

every  conceivable  case  that  might  arise,  civil  or  criminal, 
however  important  or  trivial.^^* 

On  December  6,  however,  he  sent  another  message  advis- 
ing the  ratification  of  the  Amendment  as  a  matter  of  neces- 
sity and  expediency.  He  stated  that  it  was  evident  that 
the  majority  in  Congress  was  determined  "  to  enforce  at  all 
hazards  its  own  terms  of  restoration,"  though  he  added 
that  his  views  as  to  the  merits  of  the  Amendment  had  not 
changed  in  the  least.  He  also  stated  that  the  views  given 
in  his  first  message  were  based  on  principle,  but  that  they 
should  look  at  their  true  condition  and  ratify  the  Amend- 
ment in  order  to  be  restored  to  the  Union.^^*  This  message 
created  considerable  excitement  and  there  were  chances  of 
favorable  action,  it  was  stated,  until  the  receipt  of  ex- 
Governor  Parson's  telegram  the  next  morning.  This  is 
somewhat  doubtful,  since  it  was  said  that  the  press  of  the 
State  was  almost  a  unit  against  Governor  Patton's  last 
position,^^^  It  was  stated  in  the  telegram  that  President 
Johnson  was  still  the  friend  of  the  South  and  on  no  account 
should  the  Amendment  be  ratified.  December  7,  the  day 
after  the  receipt  of  the  message,  the  Amendment  was  re- 
fected by  an  almost  unanimous  vote,  66  to  8  in  the  House, 
and  28  to  3  in  the  Senate  J  An  eflfort  was  made  in  the 
House  to  have  the  question  Submitted  to  the  people,  but  this 
was  defeated  by  a  vote  of  49  to  24.^^^ 

Efforts  were  made  in  January  to  reconsider  the  vote  on 
the  Amendment.     Mr.  Parsons  wired  the  President  asking 

^  To  quote  his  language :  "  It  matters  not  what  might  be  the 
character  of  his  case.  It  might  be  civil,  or  criminal.  It  might  be 
a  simple  action  of  debt,  or  a  suit  in  trover;  it  might  be  an  in- 
dictment for  assault  and  battery,  for  larceny,  for  burglary,  for 
arson,  or  for  murder.  It  would  be  all  the  same.  Upon  a  simple 
complaint  that  his  rights,  either  of  person  or  property,  had  been 
infringed,  it  would  be  the  bounden  duty  of  the  tribunal  to  which 
he  made  his  application,  to  hear  and  determine  his  case." — Alabama 
House  Journal,  1866,  p.  213. 

""  Annual  Cyclopaedia,  1866,  p.  12. 

'**  McPherson,  Scrap-book,  "  Fourteenth  Amendment,"  pp.  55-60. 

^**  Ala.  House  Journal,  1866,  pp.  210,  213,  and  Senate  Journal,  p. 
183. 


tr 


196        Adoption  of  the  Fourteenth  Amendment. 

what  to  do.  The  President  replied  that  there  could  be  no 
ood  in  doing  this,  and  the  matter  was  dropped.^^^ 
Governor  Worth,  of  North  Carolina,  on  November  20, 
1866,  submitted  the  Amendment  to  the  General  Assembly 
with  a  strong  message  against  its  ratification.  He  held  that 
it  had  not  been  proposed  by  a  Congress  composed  as  provided 
by  the  Constitution,  and  that  on  that  account  alone,  no  State 
could,  with  dignity,  ratify  it.  He  also  pointed  out  the 
heterogeneous  character  of  the  Amendment,  declaring  that  it 
was  the  first  attempt  to  use  omnibus  legislation  in  changing 
the  fundamental  law.  It  was  also  stated  in  the  message  that 
if  the  fifth  section  was  but  a  reaffirmation  of  what  was 
already  in  the  Constitution,  as  was  claimed  by  some,  it  was 
mere  surplusage ;  but  if  it  was  intended  to  enlarge  and 
amplify  the  various  powers  "  which  would  be  reasonably  im- 
plied from  the  sections  which  precede  it,  and  to  give  to  Con- 
gress a  peculiar  authority  over  the  subjects  "  embraced  in 
those  sections,  then  it  was  "  mischievous  and  dangerous." 
The  great  value  of  the  American  system  of  government  was 
due  to  the  fact,  said  the  Governor,  that  a  municipal  code  was 
provided  under  the  jurisdiction  of  each  State  for  trial,  by  a 
jury  of  the  county  or  neighborhood  where  the  parties  resided, 
of  all  controversies  as  to  life,  liberty,  or  property  with  the 
exception  of  the  very  limited  field  of  federal  jurisdiction. 
This  was  to  be  done  anyway,  he  continued,  by  the  Amend- 
ment, since  Congress  would  become  the  protector  of  those 
rights  and  the  "guarantor  of  equal  protection  of  the  laws." 
Moreover,  Congress  would  be  empowered  to  provide,  by 
appropriate  legislation,  a  system  of  rights  and  remedies 
which  could  only  be  administered  in  the  Federal  Courts,  there- 
by transferring  to  the  few  points  in  the  State  where  such 
Courts  are  held  the  most  common  and  familiar  offices  of  jus- 
tice, and  to  judges  and  other  officers  who  hold  their  commis- 
sions, not  from  the  people  themselves,  but  from  the  President 
and  Senate  of  the  United  States.  "The  States,  as  by  so 
much,"  he  added,  "  are  to  cease  to  be  self-governing  com- 

"^The  Trial  of  the  President,  Supplement  to  the  Congressional 
Globe. 


The  Amendment  Before  the  States.  197 

munities,  as  heretofore,  and  tresspasses  against  the  person, 
assault  and  battery,  false  imprisonments,  and  the  like,  where 
only  our  citizens  are  parties,  must  be  regulated  by  the  Con- 
gress of  the  Nation  and  adjudged  only  in  its  Courts."  He 
was  unable  to  believe,  he  said,  that  the  deliberate  judgment  of 
the  people  of  any  State  would  approve  of  the  innovation  to 
be  wrought  by  the  Amendment,  and  as  anxious  as  he  was  to 
see  the  Union  restored,  there  was  nothing  in  the  Amendment 
calculated  to  perpetuate  that  Union,  but  that  its  tendency  was 
rather  to  perpetuate  sectional  alienation  and  estrangement.^^^ 

On  November  22,  a  joint  Committee  was  proposed,  to 
which  the  Amendment  was  referred.  Four  days  later  Mr. 
Logan,  of  Rutherford  County,  offered  a  resolution  in  the 
House  for  the  ratification  of  the  Amendment,  but  it  was  re- 
ferred to  the  joint  committee  on  that  subject  by  a  vote  of  92 
to  16,^^*  thus  showing  the  fate  which  awaited  the  Amend- 
ment itself. 

The  Committee  had  the  Amendment  under  consideration 
for  two  weeks,  making  their  report,  which  was  a  very  strong 
one,  on  December  6,  1866.  The  Committee  agreed  with  the 
Governor  as  to  the  unwisdom  of  embracing  so  many  Amend- 
ments in  one. 

In  reference  to  the  question  whether  the  Amendment  had 
been  proposed  constitutionally,  it  was  pointed  out  that  North 
Carolina  and  her  sister  States  had  been  repeatedly  recognized 
"  as  States  in  the  Union  "  by  all  the  Departments  of  the  Gov- 
ernment, both  during  and  since  the  war.  Several  instances 
were  cited  to  show  this.  They  were  also  recognized  as 
States,  said  the  Committee,  by  the  submission  of  the  Amend- 
ment to  them  for  ratification. 

The  Committee  then  proceeded  to  show  that  if  the  assent 
of  those  States  was  necessary  to  make  the  ratification  valid, 
it  was  equally  necessary  to  render  the  proposal  of  it  valid. 

The  Amendment  was  objected  to  on  the  ground  that  it  con- 
tained provisions  of  temporary  interests  merely,  and  that  only 
provisions  made  for  all  times  should  be  incorporated  into  the 

"*N.  C.  House  Journal,  1866-67,  PP-  24-30. 
"*  Ibid.,  p.  81. 


198        Adoption   of  the   Fourteenth   Amendment. 

Constitution.  The  privileges  and  immunities  which  the 
States  were  prohibited  from  abridging  or  denying  were  left 
in  doubt,  declared  the  Committee,  since  it  was  not  stated 
whether  they  consisted  only  of  those  which  were  then  sup- 
posed to  exist  or  whether  they  included  all  others  which  the 
Federal  Government  might  thereafter  declare  to  belong  to 
citizens.  The  latter  construction  was  the  more  natural,  con- 
tinued the  report,  and  was  the  one  which  Congress  could  in- 
sist upon  as  being  both  correct  and  consistent  with  the  lan- 
guage used.  With  this  construction,  what  limit  was  there, 
it  was  asked,  to  the  power  of  the  Federal  Government  to  in- 
terfere with  the  internal  affairs  of  the  States.  "  And  what 
becomes  of  the  right  of  a  State  to  regulate  its  domestic  con- 
cerns in  its  own  way?  Whatever  restrictions  any  State 
might  think  proper,  for  the  general  good,  to  impose  upon 
any  one  or  all  its  citizens,  upon  a  declaration  by  the  Federal 
Government  that  such  restrictions  were  an  abridgment  of 
the  privileges  and  immunities  of  the  citizens  of  the  Union, 
such  state  laws  would  at  once  be  annulled.  For  instance,  the 
laws  of  North  Carolina  forbid  the  inter-marriage  of  white 
persons  and  negroes.  But  if  this  Amendment  be  ratified,  the 
government  of  the  United  States  could  declare  that  this  law 
abridged  the  privileges  of  citizens,  and  must  not  be  enforced ; 
and  miscegenation  would  thereupon  be  legalized  in  this  Com- 
monwealth. Grant  that  such  action  on  the  part  of  the  gov- 
ernment would  not  be  probable,  still  it  is  possible ;  and  its 
bare  possibility  sufficiently  exemplifies  the  boundlessness  of 
the  powers  which  the  Amendment  would  confer  on  the  Fed- 
eral Government." 

Under  the  original  Constitution,  says  the  report,  the  muni- 
cipal aflfairs  and  the  personal  and  property  interests  of  the 
citizens  were  left  to  the  States,  but  this  was  all  changed 
by  the  Amendment,  for  the  Federal  Government  would  be 
authorized  to  come  between  a  State  and  its  citizens  in  almost 
all  conceivable  cases.  It  would  be  empowered  "  to  supervise 
and  interfere,  with  the  ordinary  administration  of  justice  in 
the  state  courts,  and  to  provide  tribunals, — ^as  has  to  some 
extent  been  already  done  in  the  Civil  Rights  Bill,  to  which 


The  Amendment  Before  the  States.  199 

an  unsuccessful  litigant,  or  a  criminal  convicted  in  the  courts 
of  the  State,  can  make  complaint  that  justice  and  the  equal 
protection  of  the  laws  have  been  denied  him,  and  however 
groundless  may  be  his  complaint,  can  obtain  a  rehearing  of 
his  cause.  The  tendency  of  all  this  is  to  break  down  and 
bring  into  contempt  the  judicial  tribunals  of  the  States,  and 
ultimately  to  transfer  the  administration  of  justice  both  in 
criminal  and  civil  causes,  to  Courts  of  federal  jurisdiction,  is 
too  manifest  to  require  illustration." 

In  reference  to  the  third  section,  the  Committee  said: 
"What  her  [North  Carolina]  people  have  done,  they  have 
done  in  obedience  to  her  own  behests.  Must  she  now  punish 
them  for  obeying  her  own  commands?  If  penalties  have 
been  incurred,  and  punishments  must  be  inflicted,  is  it 
magnanimous,  is  it  reasonable,  nay,  is  it  honorable,  to  re- 
quire us  to  become  our  own  executioners?  Must  we,  as  a 
State,  be  regarded  as  unfit  for  fraternal  association  with  our 
fellow  citizens  of  other  States,  until  after  we  shall  have  sac- 
rificed our  manhood  and  banished  our  honor?  Surely  not. 
North  Carolina  feels  that  she  is  still  one  of  the  daughters  of 
the  great  family.  Wayward  and  wilful,  perhaps,  she  has 
been ;  but  honor  and  virtue  still  are  hers.  If  her  errors  have 
been  great,  her  sufferings  have  been  greater.  Like  a  stricken 
mother,  she  now  stands  leaning  in  silent  grief  over  the  bloody 
graves  of  her  slain  children.  The  mementos  of  former  glory 
lie  in  ruins  around  her.  The  majesty  of  sorrow  sits  en- 
throned on  her  brow.  Proud  of  her  sons  who  have  died  for 
her,  she  cherishes,  in  her  heart  of  hearts,  the  loving  children 
who  were  ready  to  die  for  her,  and  she  loves  them  with  a 
mother's  warm  affection.  Can  she  be  expected  to  repudiate 
them?  No!  it  would  be  the  act  of  an  unnatural  mother. 
She  can  never  consent  to  it.    Never! " 

It  was  stated  in  the  report  that  it  was  impossible  to  con- 
ceive how  wide  the  door  was  opened  by  the  last  section  for 
the  interference  of  Congress  "  with  subjects  hitherto  re- 
garded beyond  its  range."  One  of  the  most  serious  evils  of 
the  Amendment  was  declared  to  consist  in  the  vast  addition, 
made  in  so  many  ways,  to  the  power  of  the  General  Gov- 


t 


200       Adoption  of   the  Fourteenth  Amendment. 

ernment  There  had  already  developed,  said  the  Committee, 
the  tendency  towards  centralization  and  consolidation,  which 
had  been  greatly  increased  by  the  defeat  of  the  States  which 
had  always  been  the  advocates  of  State  Rights ;  and  that  even 
without  new  constitutional  grants  of  authority,  the  Federal 
Government  was  no  longer  what  it  once  was,  but  was  now 
a  mighty  giant  which  threatened  "  to  swallow  up  the  States, 
and  to  concentrate  all  power  and  dignity  in  itself."  This 
centralizing  tendency,  continues  the  report,  should  be  checked 
rather  than  fostered,  and  that  the  "  American  people  ought 
not,  by  new  grants  of  power,  to  seem  to  authorize  the  con- 
tinual exercise  of  extraordinary  prerogatives,  undreamed  of 
in  the  purer  and  happier  days  of  the  Republic." 

It  was  the  opinion  of  the  Committee  that  the  ratification 
of  the  Amendment  would  not  facilitate  the  restoration  of  the 
State,  and  moreover,  that  no  humiliation  or  degradation 
could  be  deeper  than  yielding  to  intimidation  and  ratifying, 
through  fear,  a  measure  which  it  disapproved. 

Only  one  member  of  the  Committee  refused  to  sign  the 
report,  and  his  reason  for  doing  so  was  based  on  the  belief 
that,  in  view  of  all  the  circumstances,  it  would  be  to  the 
interest  of  the  State  to  ratify  the  Amendment.^^®  The 
Amendment  was  rejected,  December  13,  by  a  vote  of  45  to 

I  in  the  Senate,  Mr.  Harris,  of  Rutherford,  casting  the  only 

vote  in  favor  of  the  Amendment.^^"  The  House  rejected  it 
by  a  vote  of  93  to  lo.^^'^ 

The  report  of  the  joint  Committee  of  North  Carolina  is 
valuable,  not  only  from  the  fact  that  it  is  the  longest  and 
most  exhaustive  made  by  any  Southern  State,  but  also  be- 
cause it  gives  the  principal  objections  which  induced  those 
•^States  to  reject  the  Amendment  with  such  unanimity. 

Governor  Murphy,  of  Arkansas,  had  recommended  the  rat- 
ification of  the  Amendment,  and  a  resolution  to  do  this  in 
order  "  to  calm  the  troubled  waters  of  our  political  atmos- 
phere "  was  introduced  December  10,  1866.^^^     This  resolu- 

""N.  C.  Senate  Journal,  1866-67,  PP-  91-105. 
"•Ibid.,  p.  138. 

*"  N.  C.  House  Journal,  1866-67,  p.  183. 
""Annual  Cyclopaedia,  1866,  p.  27. 


J 


The  Amendment  Before  the  States.  201 

tion  was  referred  to  the  Committee  on  Federal  Relations. 

On  the  same  day  the  Senate  Committee  reported  adversely 

as  to  the  ratification  of  the  Amendment.    'The  report  vi^s^Sf"^"^ 

based  on  the  following  grounds : 

1.  The  Amendment  had  not  been  constitutionally  proposed,! 
nearly  one  third  of  the  States  being  excluded  from  all  partici- 
pation in  it. 

2.  It  had  not  been  submitted  to  the  President  for  his  ap- 

mil  II  J  I   II  .._L_i  -^-.^«— *"—  — ~ 

provalT         /  r 

3.  "  The  great  and  enormous  power  sought  to  be  con- 
ferred on  Congress,  under  the  Amendment  which  gives  that 
body  authority  to  enforce  by  appropriate  legislation  the  pro- 
vision of  the  first  article  of  said  Amendment,  in  efifect,  takes 
away  from  the  States  all  control  over  all  the  people  in  their 
local  and  their  domestic  concerns,  and  virtually  abolishes  the 
State." 

4.  The  second  section,  whether  intended  so  or  not,  gave 
the  power  to  bring  about  negro  suffrage,  with  or  without 
the  consent  of  the  States. 

5.  The  third  section  would  disfranchise  many  of  the  best 
and  wisest  men  of  the  State. 

The  Committee  thought  it  preferable  to  bear  their 
"  troubles,  trials  and  deprivations,  and  even  wrongs,  in  dig- 
nified silence,"  rather  than  to  commit  an  act  of  disgrace,  if 
not  annihilation,  such  as  would  result  in  the  adoption  of  this 
Amendment  by  the  Legislature.^^^ 

This  report  was  adopted  December  15,  by  a  vote  of  24 
to  i."° 

''"^he  House  Committee  reported  against  ratification  De- 
cember 17,  stating  as  its  reasons  for  doing  so,  that  the 
Hrst  section  made  negroes  citizens  and  prohibited  the  States 
from  abridging  any  of  their  privileges  as  citizens  of  the 
United  States.  The  report  also  declared  that  Congress 
would  be  empowered  to  define  what  rights  they  should  en- 
joy, and  to  elevate  them  by  legislative  enactment  to  a  polit- 
ical equality  with  the  whites.     "  It  also  transfers  to  Con- 

'^Ark.  Senate  Journal,  1866,  p.  259. 
"•Ibid.,  p.  262. 


>' 

^ 


202        Adoption  of   the  Fourteenth  Amendment. 

gress,"  continued  the  Committee,  "  jurisdiction  of  the  local 
and  internal  affairs  of  the  States,  virtually  destroying  the 
independence  of  their  courts  and  centralizing  their  reserve 
powers  in  the  Federal  Government."  The  report  was  adopted 
tl;g„§ame  day  by  a  vote  of  68  to  2.^*^  '.  "" 

Governor  Orr,  in  his  message  to  the  General  Assembly  of 
South  Carolina,  November  27,  1866,  recommended  the  rejec- 
tion of  the  Amendment.  It,  in  his  opinion,  gave  Congress 
the  absolute  right  of  determining  who  should  be  citizens  of 
the  States,  who  should  exercise  the  elective  franchise,  and^ 
who  should  /enjoy  the  rights,  privileges  and  immunities  of 
citizenship./'  By  it,  he  continued,  the  representatives  of  Ore- 
gon or  Cafifornia,  or  of  any  State,  would  be  given  the  power 
to  declare  what  should  be  the  measure  of  citizenship  in  South 
Carolina  or  any  other  State,  and  this  he  declared  to  be  an  evil, 
since  the  citizens  of  the  States  were  more  likely  to  exercise 
this  power  judiciously  and  intelligently  than  non-residents 
who  knew  nothing  of  the  people,  their  necessities,  resources, 
etc.  "  With  this  Amendment,  incorporated  in  the  Constitu- 
tion," he  declared,  "  does  not  the  Federal  Government  cease 
to  be  one  of  '  limited  powers '  in  all  of  the  essential  qualities 
which  constitute  such  a  form  of  government.""^ 

About  a  week  before  this  message  was  sent,  ex-Governor 
Perry  of  the  same  State,  in  an  open  letter  to  the  editor  of 
the  New  York  Herald^*^  asserted  that  the  last  section  of  the 
Amendment  destroyed  all  the  rights  of  the  States  and  cen- 
tralized all  power  in  Congress,  and  that  this  was  done,  not 
openly,  but  covertly  and  insidiously. 

The  Amendment  was  rejected  in  the  House,  December  20, 
by  a  vote  of  95  to  i.     The  Senate  concurred  in  the  resolu- 
^■tion  rejecting  it,  but  the  vote  was  not  given.^tl-—— — ^ 

Governor  Pierpont,  of  Virginia,  advised  the  ratification  of 
the  Amendment  in  order  to  improve  the  condition  of  the 
people,  but  the  Legislature  did  not  follow  his  advice.     The. 

^^Ark.  House  Journal,  1866,  pp.  288-91. 

*"  S.  C.  House  Journal,  1866,  p.  34. 

'"November  22,  1866. 

^"S.  C.  House  Journal,  1866,  p.  284,  and  Senate  Journal,  p.  230. 


The  Amendment  Before  the  States,  203 

Amendment  was  rejected  by  both  Houses  January  9,  1867, 
the  vote  in  the  Senate  being  27  to  o;  in  the  House  74  to  i.^*' 
""Governor  Humphreys,  of  Mississippi,  characterized  it,  in 
his  message,  as  an  insulting  outrage  to  many  of  their  wor- 
.thiest  men,  and  as  "such  a  gross  usurpation  of  the  rights 
of  the  States  and  such  a  centraHzation  of  power  in  the  Fed- 
eral Government "  that  the  mere  reading  of  it  was  sufficient 
to  cause  its  rejection.^F  Ex-Governor  Sharkey,  who  was 
Senator-elect  from  the  same  State,  in  a  letter  from  Wash- 
ington, September  17,  1866,  to  Governor  Humphreys,  called 
attention  to  the  fact  that  the  Amendment  did  not  enumerate 
the  privileges  and  immunities  for  which  Congress  might 
provide  by  the  last  section.  He  also  suggested  that  Con- 
gress might  confer  privileges  on  one  class  to  the  exclusion 
of  another  class,  or  might  even  assume  absolute  control  over 
all  the  people  and  the  domestic  concerns  of  a  State,  but 
stated  that  any  State  which  had  so  little  self-respect  as  to 
adopt  it  deserved  no  better  fate.  To  him,  however,  the 
fifth  section  was  the  Trojan  horse  of  mischief,  since  it  could 
be  construed  to  empower  Congress  to  do  whatever  it  desired 
to  do.  He  then  cited  a  similar  provision  attached  to  the 
13th  Amendment,  under  which  Congress  held  that  it  had 
power  to  pass  the  Freedman's  Bureau  and  Civil  Rights  Bills. 
Congress  had  interpreted  the  second  section  of  that  Amend- 
ment, he  said,  just  as  he,  when  Governor  of  Mississippi,  had 
admonished  many  members  of  the  Legislature  that  it  would 
be.  He,  therefore,  thought  they  should  profit  by  the  expe- 
rience which  had  been  furnished  them  by  the  same  pro- 
vi^n  in  the  Thirteenth  Amendment.^*'^ 
/'  The  Amendment  was  unanimously  rejected  by  both  Houses, 

/   in  the  House,  January  25,  1867,  88  to  o,  and  in  the  Senate, 
C    January  30,  27  to  o.^*® 

\_-fe^touisiana,  just  as  in  Arkansas  and  Virginia,  the  Gov- 
ernor advised  the  ratification  of  the  Amendment  but,  as  in 

^^'Va.  House  Journal,  1866-67,  p.  108,  and  Senate  Journal,  p.  loi. 
***  Annual  Cyclopaedia,  1866,  p.  521. 

"''Atlanta  Intelligencer,  October  5,  and  N.  Y.  Herald,  October  6, 
1866. 
"'  McPherson,  Reconstruction,  p.   194. 


f 


204        Adoption  of  the   Fourteenth  Amendment. 

those  two  instan(:es,  the  advice  was  not  heeded.  The  Gov- 
ernor did  not  advise  its  ratification  as  a  matter  of  expediency, 
but  because  he  regarded  it  just  and  proper,  ^though  he 
thought  the  States  should  be  required  to  grant  the  negroes 
equal  political  rights.  A -joint  resolution  jrejecting  the 
Amendment  was  almost  immediately  introduced  in  the  Sen- 
'ate,  to  which  both  Houses  agreed  without  a  dissenting  vote, 
the  Senate  February  5,  and  the  House  the  next  day.^1® 

Thus,  within  less  than  eight  months  after  the  Amendment 
»  had  been  submitted  by  Congress,  every  one  of  the  so-called 
disloyal  States,  except  Tennessee,  had  rejected  the  Amend- 
ment, three  of  them  unanimously,  and  the  others  almost  so. 

Of  the  three  border  States  which  rejected  the  Amendment, 
Kentucky  comes  first.  There  was  apparently  no  debate 
in  either  House,  the  Amendment  being  rejected  by  both  on 
January  8,  1867.  The,  vote  in  the  House  was  67  to  2y,  and 
in  the  Senate  24  to  g.^y 

Xlelawace,  one  of  the  three  States  that  never  ratified  the 
Thirteenth  Amendment,  also  has  the  distinction  of  being 
one  of  the  three  States  which  rejected  and  never  afterwards 
ratified  the  Fourteenth  Amendment.  In  his  message  to  the 
Legislature,  Governor  Saulsbury  said  that  the  people  had 
spoken  so  emphatically  against  ratification  he  felt  sure  that 
it  would  be  rejected.^^^  The  Committee  in  the  House  re- 
ported against  ratification  February  6,  1867,  and  this  report 
was  adopted  by  a  vote  of  15  to  6.  The  Senate  concurred 
next  day  by  a  vote  of  6  to  3.^" 

Maryland  followed  Delaware  the  next  month,  both 
Houses  rejecting  the  Amendment,  March  23,  by  a  vote  of 
47  to  10  in  the  House,  and  13  to  4  in  the  Senate.^^^ 

The  joint  Committee  on  Federal  Relations,  declared,  in 
their  report  March  19,  that  the  proposition,  which  the 
States  were  called  upon  to  ratify,  would  strip  the  States  of 
powers  most  vital  to  their  safety  and  freedom,  and  even  to 

**  Ibid.,  p.  194,  and  Annual  Cyclopaedia,  1866,  p.  452. 

"•Ky.  House  Journal,  1867.  p.  60,  and  Senate  Journal,  p.  62. 

"*Del.   Senate  Journal,   1867,  p.  26. 

*"  Ibid.,  p.  176,  and  House  Journal,  p.  223. 

""Md.  House  Journal,  1867,  p.  1141,  and  Senate  Journal,  p.  808. 


The  Amendment  Before  the  States.  205 

their  continued  existence  in  any  useful  way,  and  would 
bestow  those  powers  upon  the  Federal  Government.  Before 
giving  assent  to  such  a  proposition,  the  Committee  thought 
it  should  be  considered  in  all  its  aspects  and  consequences, 
Maryland's  geographical  position,  her  commercial  relations 
with  all  parts  of  the  Union,  as  well  as  her  patriotic  desire 
for  the  welfare  and  happiness  of  the  whole  country  and  her 
desire  for  the  speedy  restoration  of  friendly  relations  between 
the  States,  would,  said  the  Committee  induce  her  to  make 
every  possible  sacrifice  to  secure  the  great  objects  of  the 
Constitution,  namely,  "  To  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defense,  promote  the 
general  welfare,  etc."  The  Committee,  however,  was  unable 
to  see  anything  in  the  proposed  Amendment  which  tended  in 
that  direction.  In  order  to  understand  the  nature  and  the 
objects  of  the  Amendment,  they  went  into  the  history  of 
it,  and  examined  the  grounds  upon  which  its  ratification  was 
urged.  The  report  of  the  Reconstruction  Committee  was 
gone  into  quite  at  length,  after  which  the  Committee 
said  that  the  report  showed  that  the  avowed  purpose 
was  to  punish  the  Southern  States  and  people  for  the  future 
peace  and  safety  of  the  country.  Two  incongruities  in  the 
proposition  were  pointed  out:  first,  that  while  the  demand 
for  conferring  additional  power  upon  the  Federal  Govern- 
ment was  presented  in  the  report  of  the  Reconstruction 
Committee,  as  if  made  upon  the  Confederate  States  only, 
it  was  in  fact  made  upon  all  the  States,  since  it  would  be 
binding  on  all  if  ratified;  secondly,  that  while  it  would 
greatly  diminish  the  power  of  the  Southern  States  in  the 
House  of  Representatives  it  would  at  the  same  time  reduce 
that  of  Maryland  and  other  States  which  stood  loyally  by 
the  Government.  The  Committee  also  reached  the  conclu- 
sion that  the  Amendment  had  not  been  properly  proposed — 
eleven  States  being  forcibly  excluded  from  all  participation  in 
Congress.  It  was  pointed  out  that  there  was  no  thought 
of  compulsory  representation  in  the  Constitution  and  cer- 
tainly, continued  the  report,  none  of  forcible  exclusion.  The 
same  Congress  which  excluded  the  Southern  Senators  and 


2o6        Adoption  of  the  Fourteenth  Amendment. 

Representatives  had  recognized  their  state  governments  as 
legally  accepting  the  ratification  of  the  Thirteenth  Amend- 
ment by  their  Legislatures,  while  at  the  same  time  claiming 
and  exercising  the  power  to  pass  the  Civil  Rights  Bill  and 
Freedman's  Bureau  Bill  in  virtue  of  that  Amendment.  The 
fact  that  the  Amendment  had  not  been  properly  proposed 
was  of  itself  an  insuperable  obstacle  to  its  ratification  by 
Maryland,  but  the  Committee  stated  that  if  this  fact  were 
otherwise,  the  State  could  not  voluntarily  assent  to  any  of 
the  propositions  of  the  Amendment.  Allusion  was  made  to 
the  danger  of  rashly  disturbing  the  admirable  adjustment  of 
the  balance  of  powers  between  the  Federal  and  state  govern- 
ments, while  the  passions  of  men  were  highly  excited,  thus 
rendering  them  blind  to,  and  reckless  of,  consequences.  The 
Fathers  "  guarded  against  the  danger  of  consolidation. 
That  now  is  the  rock  upon  which  our  ship  of  State  is  in 
imminent  danger  of  being  totally  wrecked "  declares  the 
report. 

The  object  and  eflfect  of  the  first  clause  of  section  one 
was  to  give  Congress,  it  was  asserted,  instead  of  the  States, 
the  right  to  determine  who  should  be  deemed  citizens  of  the 
States,  and  what  residence  should  be  necessary  to  constitute 
citizenship.  All  the  provisions  of  the  Amendment,  it  was 
stated,  "  must  be  read  in  the  light  of  the  fifth  section,  and 
of  the  interpretation  already  given  by  Congress  to  the  same 
language  in  the  Thirteenth  Amendment."  To  provide  for 
the  protection  and  regulation  of  life,  liberty  and  property 
was  declared  to  be  "  the  sole  and  exclusive  right  of  every 
State,"  and  the  proposition  to  invest  Congress  with  the 
power  of  supervision,  interference  and  control  over  state 
legislation  in  regard  to  those  questions  was  virtually  to 
empower  Congress  to  abolish  the  state  governments. 

In  regard  to  the  second  section,  the  Committee  said  that 
it  would  abridge  a  right  of  the  States  theretofore  unques- 
tioned. It  was  a  well  known  fact,  it  was  stated,  that  the 
representation  of  the  South  would  be  constitutionally  en- 
larged by  the  emancipation  of  the  slaves,  but  that  even  then 
that  section  would  be  in  such  a  hopeless  minority,  that  it 


The  Amendment  Before  the  States.  207 

would  be  difficult  to  imagine  a  higher  compliment  or  tribute 
than  was  paid  by  the  Reconstruction  Committee  to  the  moral 
power  and  intellectual  prowess  of  Southern  Representatives 
in  the  expression  of  the  fear  and  danger  that  they  would 
control  Congress  if  admitted  without  diminished  power. 

The  third  section  was  objected  to  on  the  ground  that  it 
was  ex  post  facto,  and  the  fourth,  on  the  ground  that  it 
would  inspire  apprehension  rather  than  confidence,  in  regard 
to  the  public  debt,  and  that  compensation  should  be  made 
for  the  slaves  of  Maryland.^^* 

Governor  Swann,  in  his  message  January  4,  1867,  said 
that  it  could  not  have  escaped  notice  that  the  five  distinct 
propositions  of  the  Amendment  embodied  more  than  their 
language  would  seem  to  convey.  The  last  clause,  he  de- 
clared, which  gave  Congress  power  to  enforce  the  other 
propositions  "  by  appropriate  legislation,"  might  leave  the 
Southern  and  border  States  at  the  mercy  of  a  mere  congres- 
sional majority,  which  might  become  dangerous  to  the 
liberties  of  the  people  in  times  of  high  party  excitement 
and  sectional  alienation.^^^  L 

California  is  the  only  State  that  neither  rejected  nor  rati-    J^^ 
fied  the  Amendment.     The  House  Committee  on  Federal       *^ 
Relations  recommended,  March  4,  1866,  that  it  be  not  rati- 
fied while  the  Senate  Committee,  March  20,  reported  in 
favor  of  ratification,^^*  but  no  vote  seems  to  have  been 
taken  by  either  House.     This  was  no  doubt  due  to  the  facX^ 
that  the  House  was  Democratic  and  the  Senate  Republican, 
_so  that  it  was  useless  to  vote.         * 

This  somewhat  extended  examination  of  the  action  and 
views  of  the  different  States  in  regard  to  the  Amendment 
leaves  but  little  doubt  as  to  the  views  generally  held  regard- 
ing its  object  and  purpose.  To  be  sure,  the  members  of 
several  of  the  Legislatures  were  elected  prior  to  the  sub- 
mission of  the  Amendment  and  on  an  entirely  different 

'"Laws  of  Maryland,  1867,  pp.  879-911,  also  Doc.  MM.,  House 
Journal  and  Documents,  1867. 
"'  Md.  House  Journal  and  Documents,  1867,  Doc.  A.,  p.  21. 
"•Cal.  House  Journal,  1867-68,  p.  611,  and  Senate  Journal,  p.  676. 


2o8        Adoption   of  the  Fourteenth  Amendment. 

issue,  so  that  their  action  may  be  said  not  to  represent  the 
will  of  the  people,  but  the  command  of  political  leaders. 
This  contention  might  be  well  founded  in  some  instances, 
but  when  viewed  in  the  light  of  the  elections  which  were 
soon  to  follow,  it  should  have  little  weight,  for  the  Radicals 
swept  the  country  in  the  elections  of  1866  in  almost  every 
State  north  of  Mason  and  Dixon's  line,  often  with  increased 
majorities.  It  may  be  properly  said,  however,  that  if  the 
question  of  the  ratification  or  rejection  of  the  Amendment 
had  been  presented  to  the  people  by  itself,  the  result  might 
have  been  quite  dififerent. 

The  question  the  people  had  to  decide  or  to  determine  in 
the  election  was  not  a  simple,  but  a  complicated  one.  The 
first  section,  the  most  important  of  all,  was  largely  lost 
sight  of  in  the  general  excitement.  Furthermore,  the 
people  were  not  in  a  frame  of  mind  to  consider  any  ques- 
tion calmly  and  deliberately,  and  it  was  certainly  a  most 
inopportune  time  to  secure  the  sober  judgment  of  the 
people  in  changing  the  fundamental  law  of  the  country. 

It  may  cause  surprise  that  the  people  and  the  States  were 
willing  to  increase  the  power  of  the  Central  Government 
to  the  extent  contemplated  by  the  framers  of  the  Amend- 
ment, but  it  does  not  seem  so  strange  when  we  consider  the 
circumstances.  The  people  were  made  to  feel  and  believe 
that  the  preservation  of  the  Union  was  again  at  stake,*  that— 
if  the  Amendment  was  not  adopted,  the  "  Rebels  "  would 
soon  be  in  control  of  the  Government  at  Washington ;  that 
the  national  debt  would  be  repudiated ;  that  the  Rebel  debt . 
would  be  assumed;  that  the  slaves  would  be  paid  for;  that 
treason  would  be  glorified ;  and  that  loyalty  would  be  made 
odious.  Many  of  the  people  held  government  bonds  and 
notes,  and,  to  insure  their  payment,  voted  for  the  Amend- 
ment; others  thoroughly  hated  the  South,  and,  to  weaken 
the  power  of  that  section,  supported  it;  others  still  wanted 
to  perpetuate  their  party  and  saw  the  opportunity  to  do 
this  by  incorporating  the  Amendment  in  the  Constitution; 
while  many  no  doubt  were  sincere  in  their  devotion  to  the 
Union  and  were  willing  to  do  anything  for  its  preservation, 


The  Amendment  Before  the  States.  209 

and,  believing  the  Amendment  necessary  for  this,  voted  for 
it.  With  all  these  various  and  heterogeneous  elements  at 
work,  there  is  really  nothing  to  cause  surprise  that  the 
Amendment  was  overwhelmingly  ratified  by  the  popular 
vote.  Moreover,  there  can  hardly  be  any  doubt  but  that 
the  action  of  some  of  the  radical,  hot-headed  men  in  the 
South  contributed  to  swell  the  Radical  majority  in  the 
North.  The  Memphis  riots,  the  riot  at  New  Orleans,  and 
the  attitude  of  many  in  speeches  and  acts — all  tended  to 
increase  the  flame  at  the  North,  while  everything  was  seized 
upon  by  the  Radical  politicians  to  show  that  the  South  was 
^till  rebellious  and  disloyal,  that  the  negroes  would  be  re- 
enslaved,  and  that  the  Union  would  be  destroyed  if  the 
Democrats  were  once  permitted  to  get  control  of  the  Gov- 
ernment. One  has  only  to  read  the  speeches  made  during 
the  campaign  to  see  that  the  effort  of  most  of  the  political 
orators  was  to  arouse  the  passions  of  the  people,  to  in- 
crease their  prejudices  and  hatred,  to  appeal  to  selfish  mo- 
tives, and  to  clothe  all  these  appeals  in  terms  of  rights  and 
justice.  If  there  is  any  surprise  it  should  be  that  the  ma- 
jority was  not  larger  than  it  really  was. 

As  in  all  questions  of  this  kind,  the  great  mass  of  the 
people  never  really  comprehended  the  meaning  and  purpose 
of  the  Amendment,  and  of  those  who  did,  many  chose  what 
they  considered  the  lesser  of  two  supposed  evils — preferring 
to  have  the  Government  in  the  hands  of  the  Radicals  with 
the  Amendment  than  in  the  hands  of  the  Democrats  without 
the  Amendment.  For  the  question  was  so  presented  as  to 
make  it  practically  impossible  to  reject  the  Amendment  and 
still  keep  the  Government  in  control  of  the  Radicals,  since 
the  Legislatures,  which  were  to  act  on  the  Amendment, 
would,  in  many  instances,  elect  United  States  Senators  as 
well. 

In  the  concluding  chapter  we  shall  give  the  interpreta- 
tion given  the  Amendment  by  Congress. 


14 


CHAPTER   V. 

Congressional  Interpretation  of  the  Fourteenth 

Amendment. 

Having  given  a  historical  resume  of  the  origin  and 
development  of  the  Fourteenth  Amendment,  its  passage  by 
Congress Ahe  attitude  of  the  press  and  the  people  towards 
it.'' and  its  final  ratification  by  the  States,  it  now  devolves 
upon  us  to  give  the  interpretation  which  Congress  gave  to 
it  after  it  had  been  proclaimed  a  part  of  the  fundamental 
law  of  the  land.  This  interpretation  is  shown  in  the  de- 
bates on  the  bills  which  were  presented  for  its  enforcement 
and  in  the  legislation  which  was  actually  enacted  into  law.  J 

Congress,  which  was  in  session  at  that  time,  adjourned  a 
few  days  later  without  making  any  attempt  to  pass  a  law 
looking  to  its  enforcement. 

Mr.  Broomall,  of  Pennsylvania,  had  introduced  a  bill, 
July,  1867,  to  secure  equal  political  and  civil  rights  to  all 
citizens  regardless  of  race  or  color.  It  was  not  considered, 
however,  until  the  eighteenth  of  March,  1868,  when  it  was 
debated  quite  at  length.  Its  purpose  was  not  to  enforce 
the  Fourteenth  Amendment,  since  it  had  not  yet  been  de- 
clared a  part  of  the  Constitution,  but  to  guarantee  a  re- 
publican form  of  Government  to  every  State.  But  at  the 
time  the  debate  took  place,  March  18,  1868,  many  of 
the  Radicals  thought  the  Amendment  had  been  ratified  by 
all  the  States  necessary  to  make  it  a  part  of  the  fundamental 
law.  This  was  the  position  taken  by  Mr.  Thaddeus 
Stevens  and  he  stated  that  until  that  Amendment  had  be- 
come a  part  of  the  Constitution,  there  was  nothing  in  that 
instrument  to  warrant  the  passage  of  such  a  bill  by  Con- 
gress. By  that  Amendment  Congress  was  given  the  power, 
in  his  opinion,  to  regulate  the  suffrage  in  every  State  of 

210 


Congressional  Interpretation   of  Amendment.      211 

the  Union.^  Mr.  Stevens  was  the  only  one  of  thc^e  who 
spoke  who  specifically  made  the  Fourteenth  Amendment 
the  authority  for  passing  such  a  bill,  the  others  finding  it 
in  the  original  Constitution.  Two  Republicans  (Messrs. 
Spalding  and  Lawrence)  declared  that  the  bill  could  find 
no  sanction  in  the  Constitution,  and  that  two  thirds  of 
their  colleagues  held  the  same  views.  One  of  them  (Mr. 
Spalding)  stated  that  such  a  bill,  if  passed,  would  be  the 
death  knell  of  their  party  in  the  presidential  election  the 
following  fall.^  The  bill  was  not  brought  before  the 
House  again,  its  defeat  being  evident. 

When  Congress  reassembled,  December  7,  1868,  a  bill  was 
introduced  by  Mr.  Boutwell  on  that  day  declaring  who  might 
vote  for  electors  for  President  and  Vice-President  and  Rep- 
resentatives in  Congress.  This  bill  was  referred  to  the  Com- 
mittee on  the  Judiciary,  of  which  Mr.  Boutwell  was  a  mem- 
ber, and  a  substitute  was  reported  for  it  by  the  Committee 
on  January  11,  1869.  The  Committee,  at  the  same  time,  re- 
ported a  joint  resolution  proposing  an  Amendment  to  the 
Constitution,  which  became,  in  substance,  the  Fifteenth 
Amendment.  It  may  seem  strange  that  the  same  Commit- 
tee which  reported  a  bill  declaring  that  "  No  State  shall 
abridge  or  deny  the  right  of  any  citizen  of  the  United  States 
to  vote  for  electors  of  President  and  Vice-President  of  the 
United  States  or  of  Representatives  in  Congress,  or  for 
members  of  the  Legislature  of  the  State  in  which  he  may 
reside,  by  reason  of  race,  color,  or  previous  condition  of 
slavery;  and  any  provisions  in  the  laws  or  constitution  of 
any  State  inconsistent  with  this  section  are  hereby  declared 
to  be  null  and  void,"  should  at  the  same  time  bring  a  resolu- 
tion for  amending  the  Constitution  of  the  United  States  to 
secure  practically  the  same  thing.  If  Congress  already  had 
the  power  to  regulate  suffrage,  what  need  of  an  Amendment? 
This  seems  a  reasonable  question  and  the  action  of  the  Com- 
mittee appears,  at  first  sight,  contradictory  and  inconsistent, 
but  however  contradictory,  their  action  was  not  inconsistent 

^  Globe,  40th  Cong.,  2d  Sess.,  pp.  1966-67. 
^Ibid.,  pp.  1971  and  1973. 


212        Adoption   of   the  Fourteenth  Amendment. 

jyithJthe  past  history  of  their  party.  It  has  already  been 
shown  in  the  earHer  pages  of  this  study  that  the  very  men 
who  passed  the  Civil  Rights  Bill  submitted  the  Fourteenth 
Amendment,  the  first  section  of  which  practically  incor- 
porates that  bill.  The  Fortieth  Congress  was  thus  following 
the  precedent  set  by  its  predecessor.  The  same  arguments 
were  used  in  this  instance  as  in  that  of  the  Civil  Rights  Bill. 
The  second  and  third  sections  of  the  bill  were  remedial  and 
punitive — their  purpose  being  to  enforce  the  first  section 
which  we  have  given  above.  The  fourth  section  was  to  en- 
force the  third  section  of  the  Fourteenth  Amendment,  and 
was  punitive  in  its  nature.  By  this  section  any  one  violating 
section  three  of  said  Amendment  was  to  be  imprisoned  at 
hard  labor  for  two  years,  being  subject  to  indictment  within 
ten  years  after  committing  the  act.  By  the  fifth  and  last  sec- 
tion of  the  bill,  exclusive  jurisdiction  of  all  offences  against 
the  act  was  to  be  given  to  the  District  Courts  of  the  United 
States. 

The  first  section  is  the  only  one  which  we  shall  consider, 
since  it  is  the  only  section  of  any  importance  in  connection 
with  the  Amendment  under  consideration.  Mr.  Boutwell, 
while  discussing  the  bill,  stated  that  he  thought  Congress 
had  broader  powers  than  those  set  forth  in  the  first  section, 
but  that  it  was  his  belief  that  the  objects  desired  could  be 
obtained  by  that  section,  and  so  not  advisable  or  desirable  to 
enact  legislation  not  necessary  to  secure  those  objects,  or  the 
object,  he  might  have  said,  for  negro  suffrage  was  the  thing 
desired.  He  based  the  power  of  Congress  to  pass  this  bill 
either  in  the  second  and  fourth  sections  of  the  first  article, 
or  the  fourth  section  of  the  fourth  article  of  the  Constitution. 
He  relied  more,  however,  upon  the  Fourteenth  Amendment, 
declaring  that  if  there  were  doubts  in  the  minds  of  any  as  to 
the  power  of  Congress  to  legislate  on  this  subject,  those 
doubts  must  disappear,  in  his  opinion,  upon  an  analysis  of 
that  Amendment.  '  He  contended  that  the  first  section  of  the 
Fourteenth  Amendment  inhibited  the  States  from  depriving 
citizens  of  those  rights  which  were  derived  directly  from  the 
States  as    well  as  those  derived    directly  from  the    United 


Congressional  Interpretation   of  Amendment.      213 

States.  In  other  words,  he  maintained  that  the  privileges 
and  immunities  which  the  States  were  prohibited  from  de- 
priving any  citizen  of  were  not  only  the  privileges  which 
they  had  as  citizens  of  the  United  States,  but  also  those 
which  belonged  to  them  by  virtue  of  being  citizens  of  the 

^States.  His  interpretation  of  the  Amendment  was  thus 
opposed  to  that  given  by  the  Supreme  Court  in  the  Slaugh- 
ter House  CasesTj  He  declared  that  the  inhibition  upon  the 
States  in  the  first  section  was  a  comprehensive  one — apply- 
ing to  all  or  to  nobody.  His  theory  was  not  that  the  States 
could  not  extend  or  limit  the  rights  and  privileges  of  its 
citizens  as  such,  but  that  if  they  did,  the  provisions  should 
apply  to  all  alike,  A  State  might  pass  a  law  that  no  one 
of  a  certain  age  should  go  to  school,  should  sell  goods, 
carry  weapons,  etc.,  but  the  law  must  apply  to  all  alike. 

Having  developed  his  theory  or  interpretation  of  the 
Amendment  to  this  point,  he  next  considered  the  question 
whether  suffrage  was  one  of  the  privileges  of  a  citizen.  He 
quoted  at  length  from  a  decision  by  the  Supreme  Court  of 
Kentucky  to  show  that  no  one  was  a  citizen  in  the  true  sense 
of  the  word  unless  he  enjoyed  the  highest  privileges  of  citi- 
zenship. If  one  man,  contended  Mr.  Boutwell,  had  the  right 
to  vote  for  certain  officers  in  any  State,  then  every  man  hav- 
ing like  qualifications  of  education  or  property  had  the  same 
right,  since  if  this  were  denied  to  any  one,  he  would  be  de- 
nied the  enjoyment  of  equal  privileges  to  which  he  was  en- 
titled by  the  Constitution.  The  power  of  Congress  to  pass  ^  / 
such  legislation  as  he  proposed  in  the  bill  was  to  be  found  ■ 
in  the  fifth  section  of  Article  Fourteen.  He  stated  that  Con- 
gress had  unlimited  power  under  that  Article  to  legislate  for 
the  purpose  of  securing  to  citizens  of  the  United  States 
privileges  and  immunities  of  citizens  of  any  one  of  the  States 
— to  see  to  it  that  the  States  did  not  discriminate  against 

_  any  class  of  citizens.  In  answer  to  the  question  why  it  was 
not  stated  in  the  Amendment  that  States  could  not  discrimi- 
nate among  their  own  citizens  in  regard  to  suffrage,  he  re- 
plied :  "  It  was  not  necessary.  The  Article  provides,  as  it 
stands,  that  there  can  be  no  discrimination  by  the  States 


214        Adoption   of   the   Fourteenth  Amendment. 

among  the  citizens  of  the  United  States,  who  are  as  well  citi- 
zens of  the  several  States  and  entitled  equally  to  the  privi- 
leges of  citizens."  He  denied  in  toto  the  doctrine  that  the 
second  section  was  a  concession  or  admission  that  the  States 
had  the  right  to  abridge  or  deny  to  a  citizen  the  right  of  suf- 
frage. It  was  but  a  political  penalty  for  doing  what  the  first 
section  declared  no  State  had  the  right  to  do.  Congress, 
when  the  Fourteenth  Amendment  was  submitted,  was  acting 
at  a  time  when  many  of  the  States  were  doing  what  the  first 
section  declared  they  had  no  right  to  do.  According  to  Mr. 
Boutwell,  a  penalty  was  provided  to  prevent  any  State  from 
taking  advantage  of  this  wrong  in  case  Congress  should  not 
exercise  the  power  conferred  upon  it  by  the  fifth  section  of 
the  Amendment.  Congress  was  now  called  upon  to  exer- 
cise that  power  in  order  to  remedy  this  evil — this  wrong 
which  the  States  had  been  committing.  He  pointed  out  the 
anomaly  of  our  Government,  if  this  power  to  legislate  in  re- 
gard to  suffrage  be  denied  Congress,  in  that  there  would  be 
citizens  eligible  for  the  office  of  President,  etc.,  and  yet  were 
not  voters.  He  denied  that  a  State  could  lawfully  deny  or 
abridge  the  right  to  vote,  and  added :  "  We  knew  there  were 
some  States  in  which  the  wrong  existed.  It  might  require 
time  before  Congress  could  exercise  its  powers  under  the 
fifth  section,  and  the  country  meant  to  say  that  while  this 
state  of  things  continued — a  state  of  things  unjust  and  con- 
trary to  the  Constitution — the  States  should  not  have  the 
benefit  of  their  wrong  doing." 

He  gave  as  one  reason  for  the  submission  of  a  constitu- 
tional Amendment,  at  the  same  time  advocating  the  bill  he 
had  introduced,  that  there  was  nothing  in  the  Constitution 
to  prevent  the  United  States  from  denying  or  abridging  the 
right  of  citizens  to  vote,  as  the  Fourteenth  Amendment  was 
but  a  limitation  upon  the  States.  The  proposed  Amendment 
would  place  a  like  limitation  upon  the  United  States.  He 
also  stated  that  if  the  Constitutional  Amendment  be  sub- 
mitted alone — without  the  bill,  that  it  would  in  a  certain  sense 
be  an  admission  that  the  power  for  which  he  was  then  con- 
tending was  wanting.     An  argument  similar  to  that  used  for 


Congressional  Interpretation  of  Amendment.     215 

incorporating  the  Civil  Rights  Bill  in  the  Fourteenth  Amend- 
ment was  that  some  future  Congress  could  repeal  a  mere  law 
and  that  it  was  better  to  have  it  in  the  Constitution.  One 
of  his  principal  arguments  for  the  passage  of  the  bill  was  that 
the  colored  voters  would  be  a  potent  factor  in  securing  the 
adoption  of  the  proposed  Amendment.  This  was  a  political 
argument  of  course,  and  showed  to  what  extent  the  political 
leaders  of  that  time  were  willing  to  go  to  maintain  their 
power.  He  recited  the  number  which  would  be  added  in 
Pennsylvania,  Ohio,  Kentucky,  Maryland,  Delaware,  New 
Jersey,  New  York  and  others.^ 

This  rather  extended  analysis  of  Mr.  Boutwell's  speech 
seems  warranted  from  the  fact  that  it  was  made  within  six 
months  after  the  final  proclamation  of  Secretary  Seward 
announcing  the  ratification  of  the  Fourteenth  Amendment.  It 
was  also  the  first  exposition  or  interpretation  given  in  Con- 
gress to  that  Amendment  after  its  ratification.  Furthermore, 
Mr.  Boutwell  had  been  a  member  of  that  famous  Reconstruc- 
tion Committee  which  had  proposed  that  Amendment,  and 
speaking  so  soon  afterwards,  his  statements  should  be  given 
more  weight  than  the  ordinary  speeches,  for  he  evidently 
knew  the  secret  motives  which  prompted  the  Committee  in 
submitting  the  Amendment. 

Mr.  Knott  followed  Mr.  Boutwell  with  a  speech  in  which 
he  undertook  to  demonstrate  that  the  third  section  of  the 
Amendment,  which  was  to  be  enforced  by  the  fourth  section 
of  the  bill  under  consideration,  could  only  apply  to  insurrec- 
tions which  might  take  place  in  the  future.  His  entire 
speech  was  devoted  to  this  topic,  and  so  is  not  of  any  great 
importance  to  us.  His  main  contention  was  that  no  matter 
what  Congress  intended,  this  intention  could  be  of  no  effect 
if  the  language  used  in  the  measure  was  clear  and  compre- 
hensible, as  this  was.* 

Another  speech  delivered  in  regard  to  this  bill  was  that 
by  Mr.  Eldridge,  of  Wisconsin.  He  declared  that  the  bill 
and  joint  resolution  were  but  steps  toward  centralization 

'  Globe,  40th  Cong.,  3d  Sess.,  pp.  S55-6i. 
*  Ibid.,  pp.  561-66. 


2i6        Adoption   of   the  Fourteenth  Amendment. 

and  consolidation,  evincing  a  premeditated  design  to  con- 
centrate all  power  in  the  Federal  Government.  He  con- 
tended that  the  second  section  of  the  Amendment  recog- 
nized the  right  of  the  States  to  regulate  the  suffrage  and 
said  that  was  the  view  taken  at  the  time,  and  the  one 
strongly  set  forth  by  Thaddeus  Stevens.  "  It  was  under- 
stood to  be  optional  with  the  States  to  grant  this  right  of 
suffrage  to  its  negroes  or  have  its  representation  in  Con- 
gress proportionately  reduced."  "^ 

Mr.  Shanks  declared  his  purpose  to  support  the  bill  and 
the  proposed  Amendment,  but  without  making  any  argu- 
ment as  to  constitutional  right  to  pass  such  a  bill."  He 
was  followed  by  Mr.  McKee,  who,  as  a  member  of  the  pre- 
ceding Congress,  voted  for  the  Fourteenth  Amendment, 
declared  that  the  right  of  Congress  to  legislate  on  the  ques- 
tion of  suffrage  was  unquestionable  since  the  passage  of 
that  Amendment.'^  Mr.  Beck,  of  Kentucky,  had  preceded 
these  last  two  gentlemen  with  a  rather  long  speech,  the 
most  important  part  of  which  was  an  effort  to  show  that 
it  was  never  claimed  while  the  Amendment  was  before  Con- 
gress that  it  would  give  the  power  now  claimed  for  it,  but 
that  it  was  denied  by  Trumbull  and  others  that  it  could 
do  so. 

Mr.  Cullom  thought  a  State  had  no  right  to  disfranchise 
a  citizen  on  account  of  race  or  color,  but  was  not  sure  that 
the  Fourteenth  Amendment  was  clear  enough  on  this  point.*/ 
Mr.  Kerr  denied  the  right  of  Congress  to  pass  the  bill, 
holding  that  suffrage  was  not  one  of  the  privileges  of 
citizenship.*/' 

Mr.  Miller,  a  Republican,  held  that  the  Fourteenth 
Amendment  did  not  authorize  the  bill  and  that  it  was  not 
contemplated  to  confer  such  power  at  the  time  it  was  pro- 
posed.^<>    Mr.   Shellabarger,  while  not  specifically  saying 

'  Ibid.,  pp.  642-45. 
•  Ibid.,  p.  692. 
'^Ibid.,  pp.  694-96. 
•Ibid.,  p.  651. 
•Ibid.,  pp.  653-58. 
Ibid.,  Appendix,  p.  92. 


Congressional  Interpretation  of  Amendment.      217 

so,  seemed  to  think  that  the  bill  was  constitutional.^^  Mr. 
Broomall  was  in  favor  of  the  bill,  evidently  thinking  it 
constitutional.^^  Mr.  Loughbridge  also  thought  that  the 
States  did  not  possess  the  power  to  deny  to  any  class  of 
citizens  the  suffrage  on  account  of  race  or  color,  but  ad- 
mitted that  he  thought  the  majority  of  the  people  believed 
such  power  was  in  the  States.^*  Mr.  Higby  declared  that 
the  language  of  the  first  section  of  the  Amendment  was  so 
comprehensive  that  it  seemed  to  include  every  right  per- 
taining to  citizenship,  but  that  the  second  section  implied 
that  States  might  deny  or  abridge  the  right  to  vote.^  With 
the  exception  of  this  right,  he  would  hold  that  all  other 
rights  were  conferred  by  the  Amendment.^* 

The  bill  was  not  discussed  after  January  29,  1869,  the 
resolution  proposing  what  practically  became  the  Fifteenth 
Amendment  having  passed  the  House  January  30.  From 
the  fact  that  the  bill  was  not  pressed  for  definite  and  final 
action,  one  might  conclude  that  it  was  realized  by  the  lead- 
ers that  it  could  not  pass,  but  the  effort  to  pass  it,  as  well 
as  the  expressions  made  in  regard  to  it,  together  with  the 
fact  that  the  Committee  on  the  Judiciary  reported  such  a 
bill,  are  significant. 

Mr.  Stewart  had,  prior  to  this,  December  14,  1868,  in- 
troduced a  resolution  (S.  R.  6yy)  to  enforce  the  third  sec- 
tion of  the  Fourteenth  Amendment.  A  month  later,  Jan- 
uary 14,  1869,  Mr.  Sumner  introduced  a  bill  (S.  R.  yyy) 
to  the  same  effect.  Mr.  Buckalew,  speaking  of  the  resolu- 
tion introduced  by  Mr  Stewart,  admitted  that  Congress  had 
the  power  to  pass  it  under  the  Amendment,  but  thought  the 
proper  course  to  enforce  the  section  was  through  the  Civil 
tribunals.^"*  Neither  of  the  above  resolutions  was  debated 
nor  does  the  Senate  appear  to  have  taken  any  further  steps. 

No  real  effort  seems  to  have  been  made  during  the  first 
session  of  the  Forty-first  Congress,  and  this  was  probably 

"  Ibid.,  p.  98. 

"Ibid.,  p.  102. 

"Ibid.,  p.  199. 

"Ibid.,  p.  294. 

"Globe,  40th  Cong.,  3d  Sess.,  p.  1490. 


21 8        Adoption   of   the  Fourteenth  Amendment. 

due  to  the  fact  that  it  was  a  special  session  and  very  short. 
Two  bills  were  introduced  in  the  House,  however,  for  the 
purpose  of  enforcing  the  third  section  of  the  Amendment 
(March  24  and  25,  1869),  but  neither  of  these  bills  was 
considered.  Two  bills  were  also  introduced  into  the  Sen- 
ate to  the  same  effect,  but  no  action  was  taken. 

Several  bills  were  introduced  at  the  next  session  of  Con- 
gress which  met  December,  1869.  Mr.  Spence  introduced 
a  bill  (S.  R.  No.  293),  December  7,  1869,  to  amend  the 
Civil  Rights  Bill,  but  this  was  indefinitely  postponed,  Feb- 
ruary 2,  1870,  on  the  recommendation  of  the  Judiciary  Com- 
mittee. Two  bills  were  introduced  as  supplementary  to  the 
Civil  Rights  Bill— one  by  Mr.  Sawyer  (S.  R.  No.  718), 
March  28,  1870;  the  other  by  Mr.  Sumner  (S.  R.  No.  916), 
May  13,  1870.  The  one  submitted  by  Mr.  Sumner  is  of 
considerable  importance,  being  practically  the  same  as  the 
bill  which  became  law  in  1875.  It  was  reported  adversely 
at  this  session,  however,  and  indefinitely  postponed  July  7.. 
1870.  Mr.  Rice  submitted  a  resolution  that  the  Committee 
on  Judiciary  inquire  into  the  effect  of  the  Fourteenth 
Amendment  upon  the  Indians  to  determine  whether  they 
were  citizens  (March  15,  1870). 

There  were  also  bills  in  the  House  to  similar  effect;  one 
being  introduced  January  17,  1870,  to  enforce  the  Amend- 
ments and  another  March  14,  following,  to  amend  the 
Civil  Rights  Bill  of  1866.  It  was  also  at  this  session  that 
the  House  passed  a  resolution  introduced  by  Mr.  Bingham 
making  it  a  criminal  offence  for  anyone  to  attempt  to  repeal 
the  ratification  of  an  Amendment  after  three  fourths  of 
the  States  had  ratified  it.  The  penalty  for  a  violation  of 
it  was  a  fine  of  not  less  than  $2,000  nor  more  than  $10,000 
and  imprisonment  of  not  less  than  one  year  nor  more  than 
ten  years.  This  bill  was  passed  July  7,  1870,  by  a  vote  of 
130  to  54,^*  but  was  pigeon-holed  by  the  Senate  Judiciary 
Committee. 

The  fact  that  these  resolutions  were  introduced  shows 
that  there  existed  a  feeling  not  only  that  Congress  should 

"Globe,  41st  Cong.,  2d  Sess.,  p.  5357. 


Congressional  Interpretation  of  Amendment.      219 

enact  legislation  for  the  enforcement  of  the  Amendment, 
but  that  it  had  the  power  to  do  so.  No  action  was  taken 
on  any  of  the  above  bills  at  this  session,  though  we  shall 
now  consider  one  which  was  debated  and  finally  became 
law. 

Mr.  Bingham  submitted  a  resolution  (H.  R.  1293)  Feb- 
ruary 21,  1870,  to  enforce  the  rights  of  citizens  of  the 
United  States  to  vote,  probably  under  the  Fifteenth  Amend; 
ment,  though  it  was  not  at  the  time  a  part  of  the  Constitu- 
tion. It  was  reported  back  from  the  Committee  on  the 
Judiciary,  March  9,  1870,  with  an  Amendment  in  the  nature 
of  a  substitute.  It  was  not  brought  before  the  House  for 
consideration  until  May  16,  following,  when  it  was  passed, 
without  debate,  under  a  suspension  of  the  rules  by  a  vote 
of  131  to  44.^'^  As  passed  by  the  House,  the  bill  only  dealt 
with  "the  question  of  suffrage,  and  so  must  have  been  for 
the  purpose  of  enforcing  the  Fifteenth  Amendment. 

On  the  same  day  that  the  above  bill  was  passed  by  the 
House^'the  Senate  began  the  consideration  of  a  bill  intro- 
duced by  Mr.  Edmunds  in  April  (S.  R.  No.  810),  and  hav- 
ing the  same  object  in  view  as  that  of  the  House  bill.  The 
Senate  bill  was  amended  by  Mr.  Stewart  for  the  purpose 
of  enforcing  the  third  section  of  the  Fourteenth  Amendment 
and  for  securing  to  all  persons  the  equal  protection  of  the 
laws.  One  of  the  amendments  offered  by  Mr.  Stewart 
was  the  first  section  of  the  Civil  Rights  Bill  of  1866.  In 
fact  the  Civil  Rights  Bill  of  1866  was  to  be  reenacted.^^ 

Mr.  Vickers,  a  senator  from  Maryland,  declared  that 
Congress  had  no  power  to  legislate  under  the  Fifteenth 
Amendment  until  some  State  had  denied  or  abridged  the 
right  after  that  Amendment  had  been  ratified,  and  since  no 
State  had  done  so,  there  was  no  occasion  for  Congress  to 
act.^'  Mr.  Thurman  was  also  of  the  same  opinion.'^"'  The 
Senate  bill  consisted  of  twelve  sections,  and  was  a  bill  of 
pains  and  penalties,  while  the  amendments  offered  by  Mr. 


Ibid.,  p.  3504. 
"  Ibid.,  p.  3480. 
"  Ibid.,  p.  3481. 
*  Ibid.,  p.  3485. 


220        Adoption   of  the  Fourteenth  Amendment. 

Stewart  added  five  more  sections,  not  counting  the  nine 
sections  of  the  Civil  Rights  Bill  which  were  not  repeated. 

Mr.  Stockton  thought  Congress  was  only  given  the  power 
to  pass  laws  enforcing  the  Amendments  when  it  was""  neces- 
sary,* i.  e.,  when  they  were  violated.^^  /  Mr.  Sherman  de- 
clared that  both  of  the  Amendments  had  been  violated  in 
several  States,  and  especially  the  Fourteenth.  He  said 
there  might  be  some  plausibility  in  the  construction  of  the 
Courts  of  California  as  to  the  Fifteenth  Amendment,  by 
implying  that  before  it  should  be  enforced  in  the  Courts 
some  legislation  should  be  passed  by  Congress.^^  If  that 
be  true  of  the  Fifteenth,  it  would  also  be  true  of  the  Four- 
teenth Amendment. 

Mr.  Schurz  said  the  express  provisions  affixed  to  the 
Amendments  giving  Congress  power  to  enforce  them  were 
put  there  because  it  was  known  that  those  Amendments 
would  have  to  be  enforced  against  the  prejudices  and  habits 
of  the  people.^' 

Mr.  Pool  said  that  the  word  "  deny  "  as  used  in  both  the 
Fourteetith  and  Fifteenth  Amendments  included  acts  of 
omission  ^  well  as  of  commission.  A  State  could  not,  ac- 
,  cording  to  his  view,  deny  by  omission,  by  failure  to  prevent 
J  '  its  own  citizens  from  depriving  any  of  their  fellow  citizens  of 
the  rights  secured  by  those  Amendments.  If  a  State  failed, 
to  carry  into  effect  the  provisions  of  the  Civil  Rights  Bill  to 
secure  the  citizens  in  their  rights,  then  the  fifth  section  would 
be  called  into  operation.  No  legislation,  he  continued,  could 
prevent  a  State  from  passing  a  law,  but  it  could  reach  the 
individuals  of  the  State  for  enforcing  the  law.  Laws  of 
Congress  act  upon  citizens,  not  upon  States,  he  contended, 
and  Congress  could  enact  legislation  for  the  enforcement 
of  the  Amendments,  but  such  legislation  would  be  applica- 
ble to  the  individuals  who  violated  or  attempted  to  violate 
them,    for   Congress  had  no  power   to   legislate   against 


^  Ibid.,  p.  3567. 
^'Ibid.,  p.  3568. 
"^  Ibid.,  p.  3608. 


Congressional  Interpretation  of  Amendment.      221 

States,  it  mattered  not  whether  the  individuals  were  acting 
as  officers  or  not.^* 

Mr.  Howard  considered  the  Fourteenth  by  far  the  most 
important  Amendment  to  the  Constitution,  and  declared, 
May  19,  1870,  that  he  was  still  of  the  opinion  expressed  in 
the  Report  of  the  Reconstruction  Committee.^^  He  said  the 
intention  and  purpose  of  Congress  in  submitting  the  Fif-i 
teenth  Amendment  was  to  secure  to  the  colored  man,  by  / 
proper  legislation,  the  right  to  vote,  and  not  merely  to  con- 
fine its  operation  to  legislation  by  way  of  prohibition  uponj 
the  United  States  and  the  States.  If  it  is  to  be  given  that 
narrow  construction,  it  will  be  stripped,  he  declared,  almost 
entirely  of  that  remedial  and  protective  justice  which  was 
in  the  minds  of  its  authors  when  it  was  proposed.^® 

Mr.  Williams  objected  to  the  Senate  bill,  saying  that  it 
was  first  a  bill  to  enforce  the  Fifteenth  Amendment,  upon 
which  Mr.  Stewart  had  filed  a  bill  to  enforce  the  Fourteenth 
Amendment,  and  another  to  protect  citizens  in  the  enjoy- 
ment of  their  civil  rights.  Mr.  Stewart  seemed  to  desire 
the  incorporation  of  the  Civil  Rights  Bill  in  order  to  secure 
protection  to  the  Chinese  aliens  who  were  coming  to  this 
country,  and  the  power  to  see  that  they  had  the  equal  pro-J 
tection  of  the  laws  conferred  by  the  Fourteenth  Amend-  ' 
^lent.^" 

Mr.  Morton  said  that  if  the  construction  put  upon  the 
Fifteenth  Amendment  by  some  was  correct,  the  second  sec- 
tion was  a  nullity,  for  their  argument  was  that  if  a  state 
law  violated  the  Fifteenth  Amendment,  it  was  void.  He  de- 
clared that  the  second  section  was  put  there  for  the  purpose 
of  enabling  Congress  to  carry  out  the  Amendment  and  that  it 
was  not  to  be  left  to  state  legislation. 

Mr.  Thurman  said  the  bill  had  been  amended  in  so  many 
respects  that  no  one  knew  what  it  was,  but  the  Senate  refused 
to  commit  the  bill  to  the  Judiciary  Committee  or  to  lay  it 
on  the  table  and  have  it  printed.     The  bill  was  characterized 

*'Ibid.,  pp.  3611-13. 
"  Ibid.,  p.  3614. 
*  Ibid.,  p.  3655. 
"  Ibid.,  p.  3658. 


222       Adoption   of   the   Fourteenth  Amendment. 

as  a  "  conglomeration  of  incongruities,"^^  and  it  must  be 
said  that  the  characterization  was  not  altogether  improper, 
for  as  finally  passed,  it  consisted  of  21  sections,  but  it  also 
included  the  Civil  Rights  Bill  of  1866,  which  would  make 
about  thirty-two  sections  in  all.  After  an  all  night  session, 
the  bill  was  passed  about  seven  o'clock  on  the  morning  of  the 
twenty-first  day  of  May,  1870,  by  a  vote  of  forty-three  to 
eight.^® 

y^  The  House  non-concurred  in  the  amendments  made  by 
the  Senate  (the  Senate  bill  had  been  moved  by  way  of 
amendment  as  substitute  for  House  bill)  and  asked  for  a 
conference.  The  Conference  Committee  made  a  few  minor 
changes,  and  added  two  sections,  making  twenty-three  sec- 
tions, which  with  the  Civil  Rights  Bill,  made  a  total  of 
thirty-four  sections. 

Mr.  Hamilton  of  Maryland  s'aid  that,  if  the  doctrines  and 
principles  involved  in  the  bill  were  sound.  Congress  possessed 
the  power,  under  the  Fourteenth  Amendment,  to  legislate 
upon  all  the  subjects  of  life,  liberty  and  property,  and  that, 
taken  with  the  other  prohibitions  of  the  Constitution,  com- 
prehended every  right  of  person  or  property,  thus  giving 
Congress  the  arbitrament  of  every  right  of  the  citizen  and 
of  the  State.  He  denied,  however,  that  the  denial  of  a  cer- 
tain power  to  a  State  thereby  conferred  upon  Congress  the 
power  over  the  subject-matter  of  such  denial.^"  He  thought 
the  framers  of  the  Fifteenth  Amendment  intended,  by  its 
peculiar  phraseology,  by  implication  in  its  construction,  for 
the  Federal  Government  to  take  control  of  elections  in  the 
States,  but  he  did  not  think  they  accomplished  their  purpose. 
Mr.  Fowler  held  that  the  remedy  under  the  Fifteenth 
Amendment  was  judicial,  though  he  admitted  that  Congress 
no  doubt  intended  to  confer  legislative  power  upon  itself  by 
the  second  section.^^ 
/'  Mr.  Swann,  of  Maryland,  stated  that  he  foresaw,  when 

/the  Fourteenth  Amendment  was  adopted  with  the  fifth  sec- 


"  Ibid,  p.  3688. 
'"Ibid,  p.  3690. 
Z  Ibid.,  Appendix,  pp.  353-55. 
Ibid.,  Appendix,  p.  421. 


Congressional  Interpretation  of  Amendment.      223 

tion  in  it,  all  that  was  contained  in  the  bill  before  the  House 
in  regard  to  the  assumed  power  of  Congress  to  regulate  and 
control  suffrage  within  the  States,     "  This  clause,"  he  con-  ,  / 
tinued,  "  was  so  vague  and  indefinite  that  it  bore  upon  its  r 
face  the  evidence  of  the  stupendous  usurpation  which  it  was ' 
designed  to  perpetrate."     He  stated  that  only  one  and  one 
half  hours  were  allowed  Democrats  for  discussion./^ 

Mr.  Casserly,  while  discussing  this  bill,  said  that  he  did 
not  think  any  one  regarded  the  Civil  Rights  Bill  as  valid 
or  Constitutional,  and  that  it  was  already  obsolete.  He  also 
stated  that  both  Amendments  were  of  the  same  character, 
and  that  if  the  powers  claimed  under  the  Fifteenth  Amend- 
ment were  applied  to  the  Fourteenth  Amendment,  Congress 
could  take  to  itself,  under  pretence  of  enforcing  that  Amend- 
ment, the  entire  criminal  and  civil  jurisdiction  of  the  States 
as  regards  offences  against  life,  liberty,  and  property.^^  He, 
however,  denied  the  power  of  Congress  to  do  so  in  both 
cases, 

Mr.  Carpenter,  of  Wisconsin,  seemed  to  think  that  the 
Fourteenth  Amendment  authorized  the  passage  of  the  Sen- 
ate bill.3* 

The  report  of  the  Conference  Committee  was  agreed  to 
in  the  Senate,  May  25,  1870,  by  a  vote  of  forty-eight  to 
eleven;^"*  in  the  House,  May  27,  by  a  vote  of  133  to  58,^® 
The  bill  as  passed  by  the  Houses  was  signed  by  the  President 
May  31,  1870,  and  so  became  a  law,  and  was,  therefore,  the 
first  law  for  the  enforcement  of  the  Fourteenth  and  Fif- 
teenth Amendments,  While  it  was  more  for  the  enforce- 
ment of  the  Fifteenth  Amendment,  it  is  of  importance  in  a 
consideration  of  the  Fourteenth  Amendment  since  it  shows 
that  Congress  acted  on  the  theory  that  the  last  section  of  the 
Amendment  conferred  upon  it  the  power  to  enforce  the 
Amendment,  and  if  this  was  true  of  the  Fifteenth  Amend- 
ment, it  was  equally  true  of  the  Fourteenth, 


"Ibid.,  Appendix,  p.  431. 

^  Ibid.,  Appendix,  pp.  470  and  473. 

**  Ibid.,  Appendix,  p.  473. 

=•  Ibid.,  p.  3809. 

"  Ibid.,  p.     ^" 


224        Adoption   of   the  Fourteenth  Amendment. 

Section  eighteen  of  the  bill  declared  that  the  Civil  Rights 
Bill  of  1866  was  thereby  reenacted — no  doubt  to  give  valid- 
ity to  it,  though  it  is  strange  that  no  reference  was  made 
as  to  this  purpose. 

At  the  third  session  of  the  forty-first  Congress,  efforts  were 
made  as  during  the  other  sessions,  to  secure  legislation  look- 
ing to  the  enforcement  of  the  Amendments,  and  especially 
of  the  Fourteenth  and  Fifteenth.  The  Judiciary  Committee 
seems  to  have  been  hostile  to  most  of  the  bills  introduced, 
for  nearly  every  one  that  was  reported  back,  was  either  ad- 
versely reported  or  indefinitely  postponed.  The  resolution 
(S.  R.  No.  715)  introduced  by  Mr.  Sawyer  at  the  previous 
session  was  so  reported  and  indefinitely  postponed  early  in 
the  session.'^ 

A  like  fate  awaited  the  bill  introduced  by  Mr.  Pool  (S.  R. 
No.  871),  this  bill  being  to  enforce  the  Fourteenth  Amend- 
ment and  to  secure  the  rights,  privileges  and  immunities  of 
citizens  of  the  United  States.^^  These  bills  had  been  intro- 
duced at  the  previous  session  but  others  were  submitted  at 
this  time.  Mr.  Sawyer  presented  a  resolution  (S.  R.  No. 
1223)  January  18,  1871,  for  the  purpose  of  protecting  citi- 
zens against  violations  of  their  civil  and  political  rights.^® 

Not  in  the  least  deterred  by  the  adverse  report  as  to  his 
resolution  of  the  previous  session,  Mr.  Sumner  again  intro- 
duced his  supplementary  Civil  Rights  Bill,  January  20, 
1871.  This  was  reported  adversely  February  15,  1871,  the 
report  being  made  by  Mr.  Trumbull.*'' 

Bills  were  also  introduced  at  this  session  to  amend  the  Act 
of  May  31,  1870,  and  one  of  these  was  passed.  It  consisted 
of  nineteen  sections  and  was  to  amend  section  twenty  of  the 
Act  of  1870,  and  related  to  elections,  to  securing  the  right 
of  suffrage,  and  the  purity  of  the  ballot  box,  as  its  advocates 
claimed,  though  Mr.  Lawrence,  of  Ohio,  declared  that  the 
second  clause  of  section  one.  Article  Fourteen,  authorized 

"4ist  Cong.,  3d  Sess.,  p.  219. 

"  Ibid.,  p.  366. 

» Ibid.,  p.  569. 

"  Ibid.,  pp.  619  and  1263. 


Congressional  Interpretation  of  Amendment.      225 

the  bill.*^  The  House  passed  the  bill,  February  15,  1871, 
after  a  four  hour  debate  by  a  vote  of  144  to  64.*^  The 
Senate  debated  it  quite  at  length,  passing  it  February  24,  or 
rather  at  1.30  A.  M.  of  the  25th,  by  a  vote  of  39  to  10.*' 
The  President  gave  his  approval  February  28,  the  bill  thus 
becoming  a  part  of  the  Act  of  May  31,  1870. 

It  thus  appears  that  the  Fortieth  and  Forty-first  Con- 
gresses, while  not  really  enacting  much  legislation  for  the  en- 
forcement of  the  Fourteenth  Amendment,  showed  that  they 
held  a  general  belief  that  they  posessed  the  power.  This 
is  shown  by  the  number  of  bills  introduced  for  that  pur- 
pose, by  the  bills  which  were  enacted  into  laws,  and  by  the 
declaration  of  members  on  the  floors  of  Congress.  It  is 
also  true  that  the  right  of  Congress  to  enact  affirmative 
legislation  in  these  instances  were  denied,  but  these  declara- 
tions came  from  the  minority  generally,  and  so  from  those 
who  had  opposed  the  Amendments  from  the  beginning. 

If  there  be  any  doubt  as  to  whether  Congress  believed  it 
possessed  such  power,  that  doubt  is  removed  by  the  study  of 
the  debates  of,  and  laws  enacted  by,  the  Forty-second  Con- 
gress. We  are  no  longer  obliged  to  draw  conclusions  or  in- 
ferences as  to  this  from  the  nature  of  bills  or  resolutions  in- 
troduced, for  here  we  have  unmistakable  evidence — plain  dec- 
larations by  members  of  Congress,  many  of  whom  had  taken 
part  in  the  enactment  of  the  Fourteenth  Amendment.  In 
fact,  some  of  the  principal  participants  in  securing  the  adop- 
tion of  that  Amendment,  were  members  of  the  Forty-second 
Congress  and  were  largely  instrumental  in  the  enactment  of 
laws  for  its  enforcement. 

On  the  third  day  of  the  session,  March  9,  1871,  Mr.  Sum- 
ner again  brought  forward  his  bill  (S.  R.  No.  99),  known 
as  the  supplementary  Civil  Rights  Bill,  and  to  avoid  another 
adverse  report,  it  was  not  referred  to  any  committee.**  On 
March  22,  following,  he  moved  it  as  an  amendment  to  Mr. 

"  Ibid.,  p.  1276. 
"  Ibid.,  p.  1285. 
« Ibid.,  p.  1655. 
"  Cong.  Rec,  42d  Cong.,  ist  Sess.,  p.  21. 

15 


226        Adoption   of   the  Fourteenth  Amendment. 

Anthony's  resolution  limiting  or  restricting  the  business  of 
the  session,  but  it  was  rejected.*^  The  bill  was  referred  to 
the  Judiciary  Committee  on  the  last  day  of  the  session,  April 
20.  March  i6,  Mr.  Frelinghuysen  introduced  a  bill  more 
fully  to  enforce  the  Fourteenth  Amendment.  A  bill  was 
introduced  in  the  House  to  protect  loyal  citizens  in  the 
South  in  their  rights,  persons,  lil^erty,  and  property,  and  one 
to  secure  the  equal  protection  of  the  laws  within  the  several 
States. 

There  appears,  however,  to  have  been  no  intention  on  the 
part  of  the  House  to  enact  any  law  for  the  enforcement  of 
the  Amendments,  since  on  five  different  occasions  it  voted 
to  adjourn  by  large  majorities.  On  motion  of  Mr.  Dawes, 
March  4,  1871,  the  House  voted  to  adjourn  sine  die  by  vote 
of  147  to  23 ;  on  the  13th  of  March,  a  similar  motion  by  him 
was  passed  by  a  vote  of  124  to  67;  on  the  15th,  a  similar 
motion  by  Mr.  Wheeler  was  adopted  by  a  vote  of  118  to  76; 
on  the  20th,  a  similar  motion  was  carried  by  vote  of  121  to 
55  ;  and  on  the  23d,  a  like  motion  by  Mr.  Farnsworth  passed 
by  a  vote  of  113  to  68." 

On  the  23d  of  March,  and  after  the  motion  of  Mr.  Farns- 
worth for  final  adjournment  had  passed,  a  message  was  re- 
ceived from  President  Grant  which  changed  the  whole  aspect 
of  affairs.  In  this  short  message  he  recommended  that  such 
legislation  be  enacted  as  would  effectually  secure  life,  liberty, 
and  property,  and  the  enforcement  of  law  in  all  parts  of  the 
United  States.  He  gave  no  evidence  to  show  that  such  legis- 
lation was  necessary,  merely  saying  that  life  and  property 
were  insecure  in  some  States  and  that  the  carrying  of  the 
mails  and  the  collection  of  the  revenues  were  dangerous.  He 
also  stated  that  it  might  be  expedient  to  provide  that  such 
legislation  as  might  be  enacted  should  expire  at  the  end  of 
the  next  session  of  Congress.  This  last  statement  seems  to 
give  some  weight  to  the  charges  of  the  opposition  that  the 
legislation  was  to  be  for  political  purposes. 

The  message  was  referred  on  the  same  day  to  a  select 

"Ibid.,  p.  225. 

**  Ibid.,  Appendix,  p.  258. 


Congressional  Interpretation  of  Amendment.      227 

Committee,  of  which  Mr.  Shellabarger  was  appointed  chair- 
man. Five  days  later,  March  28,  he  reported  from  the  Com- 
mittee a  bill  to  enforce  the  Fourteenth  Amendment.  The 
bill  consisted  of  five  sections,  the  first  of  which  made  any 
person,  who,  under  color  of  any  law,  statute,  custom,  or  regu- 
lation of  any  State,  should  deprive  any  one  of  any  rights, 
privileges,  or  immunities  secured  by  the  Constitution  of  the 
United  States,  liable  to  the  party  injured  in  any  action  at 
law,  suit  in  equity,  or  other  proper  proceeding  for  redress, 
such  proceeding  to  be  prosecuted  in  the  Federal  Courts. 
The  same  rights  of  appeal  and  remedies  provided  for  in  the 
Civil  Rights  Bill  of  1866  were  to  be  applicable  in  such  cases. 
The  second  section  provided  that  if  two  or  more  persons 
conspire  or  combine  together  to  do  any  act  in  violation  of 
the  above  mentioned  rights  or  privileges,  which  act,  if  com- 
mitted within  a  place  under  the  sole  and  exclusive  jurisdic- 
tion of  the  United  States,  would,  under  the  laws  of  the 
United  States,  constitute  the  crime  of  either  murder,  man- 
slaughter, mayhem,  robbery,  assault  and  battery,  perjury, 
subornation  of  perjury,  criminal  obstruction  of  legal  proc- 
ess, or  resistance  of  officers  in  discharge  of  official  duty, 
arson,  or  larceny,  and  if  one  or  more  of  the  parties  to  the 
conspiracy  or  combination  do  any  act  to  effect  the  object 
thereof,  all  the  parties  to  the  conspiracy  or  combination 
shall  be  deemed  guilty  of  a  felony,  and  on  conviction,  be 
liable  to  a  penalty  of  not  more  than  $10,000,  or  to  impris- 
onment for  not  more  than  ten  years,  or  both,  at  the  discre- 
tion of  the  Court;  but  in  case  of  murder,  the  penalty  to  be 
death.  The  third  section  provided  that  where  any  portion 
or  class  of  people  were  deprived,  by  insurrection,  domestic 
violence,  or  combinations,  of  any  of  the  rights  or  privileges 
secured  by  the  bill,  and  the  constituted  authorities  of  the 
State  should  fail  to  protect  them  in  these  rights,  either  by 
inability,  neglect,  or  refusal,  and  should  fail  or  neglect  to 
apply  to  the  President  for  aid,  such  facts  to  be  deemed  a 
denial  by  the  State  of  the  equal  protection  of  the  laws,  to 
which  they  were  entitled  under  the  Fourteenth  Amendment. 


228        Adoption   of  the   Fourteenth  Amendment. 

It  was  declared  to  be  the  duty  of  the  President  in  such  cases 
to  employ  the  militia  or  land  and  naval  forces  of  the  United 
States  as  he  might  deem  necessary.  The  fourth  section 
stated  what  should  be  considered  rebellion,  and  authorized 
the  President  to  suspend  the  writ  of  habeas  corpus  and  to 
declare  and  enforce  martial  law,*^ 

It  will  be  seen  by  the  brief  digest  of  the  bill  given  above, 
that  Congress  was  to  enter  upon  an  almost  entirely  new 
field  of  legislation,  and  this  was  admitted  by  Mr.  Shella- 
barger  in  his  opening  speech,  Mr.  Shellabarger  said  that  the 
first  section  of  the  proposed  bill  was  modeled  upon  the  second 
section  of  the  Civil  Rights  Bill  of  1866,  the  only  difference 
being  that  this  one  provided  for  civil  remedy  where  the  bill 
of  1866  provided  for  criminal  proceeding.  The  authority 
for  passing  the  bill,  he  asserted,  was  the  same  as  that  for 
passing  the  second  section  of  the  Civil  Rights  Bill,  but  much 
greater  in  this  case  since  the  first  section  of  the  Fourteenth 
Amendment  was  more  explicit  and  more  complete  than  the 
Thirteenth  Amendment  which  was  claimed  as  authority  for 
passing  the  bill  of  1866.  He  claimed  that  the  Civil  Rights 
Bill  was  constitutional,  having  been  so  decided  by  the  Su- 
preme Courts  of  at  least  three  States  and  had  also  been  de- 
clared constitutional  by  Justice  Swayne  of  the  United 
States  Supreme  Court  in  a  case  under  review  before  the 
United  States  Circuit  Court  of  the  district  of  Kentucky. 
His  contention  was  that  the  Fourteenth  Amendment  gave 
Congress  power  to  protect  and  defend,  by  direct,  affirmative 
legislation,  those  privileges  and  immunities  which  were  in 
their  nature  fundamental.  Equality  of  legislation  was 
secured  by  the  second  clause  of  section  one  of  the  Amend- 
ment, he  declared,  and  that  this  meant  that  the  law  on  its 
face  should  apply  equally  to  all.  The  last  clause  secured 
equality  of  protection.  The  two  clauses,  placed  in  juxtaposi- 
tion, gave  Congress  the  power  to  see  to  it  that  the  States 
should  equally  protect,  under  equal  laws,  all  persons  within 
their  jurisdiction.** 

*'Ibid.,  p.  317. 

**  Ibid.,  Appendix,  pp.  67-71. 


Congressional  Interpretation  of  Amendment.      229 

Mr.  Kerr,  who  followed  Mr.  Shellabarger,  denied  that  the 
Fourteenth  Amendment  authorized  such  bills  as  the  one  be- 
fore the  House.  He  claimed  that  the  privileges  and  immuni- 
ties spoken  of  in  that  Amendment  were  those  which  belonged 
to  citizens  of  the  United  States,  and  not  those  of  citizens  of 
the  States.  The  privileges  and  immunities  of  citizens  of  the 
United  States  belonged  to  all  such  citizens  alike ;  to  man  and 
woman,  to  adult  and  infant,  to  black  and  white,  to  sane  and 
insane.  The  Fifth  Amendment  was  inserted  in  the  Four- 
teenth Amendment  in  order  to  make  it  apply  to  the  States, 
and  out  of  abundant  caution  only.  He  further  held  that 
the  first  section  of  the  Amendment  would  be  Better  enforced 
by  its  own  vigor  and  by  judicial  decisions  than  by  Con- 
gressional legislation.  He  thought  the  bill  neither  author- 
ized nor  expedient.*^  Mr.  Stoughton,  speaking  of  the  bill 
the  day  it  was  introduced,  said  that  the  authority  conferred 
upon  Congress  by  the  fifth  section  of  Article  Fourteen,  was 
subject  to  no  restrictions  or  limitations ;  that  it  was  for  Con- 
gress in  its  discretion  to  determine  what  was  appropriate 
legislation,  and  that  its  decision  would  be  binding  upon  every 
other  department  of  the  Government.^" 

Mr.  Hoar,  of  Massachusetts,  said  that  it  had  sometimes 
been  suggested  that  the  Fourteenth  Amendment  aimed  at  un- 
lawful acts  by  the  state  authorities,  but  he  thought  the  last 
clause  of  the  first  section  was  evidence  that  this  was  not  the 
case,  since  it  would  have  been  unnecessary  if  that  was  all  that 
was  intended.  He  held  that  a  refusal  on  the  part  of  the 
officers  to  extend  the  protection  provided  for  by  the  first  sec- 
tion, e.  g.,  if  the  jurors  as  a  rule  refused  to  do  justice  where 
the  rights  of  a  particular  class  of  citizens  were  concerned  and 
the  State  afforded  no  remedy,  it  was  as  much  a  denial  of  the 
equal  protection  of  the  law  as  if  the  State  had  enacted  a 
statute  that  no  verdict  should  be  rendered  in  favor  of  that 
class  of  citizens."*^ 

Mr.  Beck  declared  that  the  bill  was  brought  forward  to 

**  Ibid.,  Appendix,  pp.  46-50. 
"  Ibid.,  p.  322. 
"  Ibid.,  p.  334. 


230       Adoption   of   the  Fourteenth  Amendment. 

divert  the  attention  of  the  people  from  the  charges  of  cor- 
ruption, class  legislation,  extravagance,  etc.,  by  the  cry  of  Ku 
Klux  and  murder.^^ 

Mr.  Farnsworth,  speaking  of  the  bill,  declared  that  if 
there  was  sanction  in  the  Fourteenth  Amendment  for  the 
/  United  States  to  punish  offences  against  the  persons  of 
/  citizens  of  any  State,  there  was  equal  sanction  for  Con- 
^-  gress  to  legislate  as  to  their  property  also.  He  consid- 
ered the  history  of  the  first  section  of  the  Amendment, 
and  denied  that  the  Amendment  reported  by  Mr.  Bingham, 
from  the  Committee  on  Reconstruction,  February,  1866, 
was  incorporated  into  that  section,  as  was  claimed  by  Mr. 
Bingham.  He  quoted  from  the  speeches  of  Messrs.  Hale, 
Hotchkiss,  Davis  and  Conkling  made  at  that  time  against 
it  to  show  the  opposition  on  the  part  of  Republicans  and 
their  view  of  what  its  effect  would  be.  He  also  quoted 
Senator  Stewart  as  saying  incidentally  of  it,  since  it  was 
never  considered  in  the  Senate,  that  there  was  "  another 
proposition  of  the  Committee  of  Fifteen,  which,  if  passed, 
will  obviate  the  necessity  of  passing  this,  and  obviate  the 
necessity  of  any  further  Constitutional  Amendment,  and  I 
think  obviate  the  necessity  of  any  more  state  Legislatures 
or  conventions."  He  cited  the  fact  that  the  Amendment, 
as  proposed  by  Mr.  Bingham  in  February,  was  postponed 
and  never  afterwards  called  up.  Mr.  Bingham  here  inter- 
jected that  he  himself  had  made  the  motion  to  postpone  and 
that  it  was  not  called  up  from  the  fact  that  it  was  put  in 
another  form.  Mr.  Farnsworth  then  quoted  from  the 
speech  of  Mr.  Stevens,  when  he  reported  the  Amendment, 
April  30,  1866,  the  first  section  of  which,  with  the  excep- 
tion of  the  first  clause,  was  exactly  the  same  as  now  in  the 
Fourteenth  Amendment,  to  show  that  its  purpose  was  to 
correct  unjust  and  partial  legislation  discriminating  against 
the  negro.  He  declared  that  they  all  knew,  and  especially 
those  of  them  who  were  members  of  Congress  when  the 
Amendment  was  proposed,  that  it  was  proposed  on  account 
of  the  unjust  and  discriminating  legislation  of  the  Southern 

"Ibid.,  p.  355. 


Congressional  Interpretation   of  Amendment.      231 

States.  He  gave  it  as  his  opinion  that  no  Democrat  had 
charged  at  the  time,  as  an  argument  against  it,  that  it  would 
confer  such  power  as  was  now  attempted  to  be  exercised, 
but  Mr.  Garfield  interrupted  him  to  say  that  Mr.  Shankling, 
of  Kentucky,  and  Mr.  Rogers,  of  New  Jersey,  had  stated 
that  it  would  have  the  effect  of  breaking  down  the  barriers 
of  state  law  and  state  authority.  It  was  stated  that  Sena- 
tors Hendricks,  Doolittle,  Davis,  of  Kentucky,  and  others 
who  spoke  against  the  Amendment,  never  claimed  that  it 
would  confer  upon  Congress  power  to  legislate  in  the  man- 
ner now  proposed.  Senator  Johnson,  of  Maryland,  had 
opposed  the  second  clause  on  the  ground  that  he  did  not 
know  what  would  be  its  effect. 

Mr.  Farnsworth  admitted  that  he  had  voted  for  the  Civil 
Rights  Bill  of  1866,  but  stated  that  many  things  had  been 
done  by  Congress  which  could  not  be  defended  if  done  in 
peace,  and  added :  "  We  passed  laws,  Mr,  Speaker,  and  the 
country  knows  it,  which  we  did  not  like  to  let  go  to  the 
Supreme  Court  for  adjudication.  And  I  am  telling  no 
tales  out  of  school.  Since  the  adoption  of  this  [Four- 
teenth] Amendment,  because  of  scruples  in  regard  to  the 
constitutionality  of  the  Civil  Rights  Bill  we  have  reenacted 
it."  He  thought,  however,  there  was  no  need  for  overstep- 
ping constitutional  bounds  at  this  time.  He  also  denied 
that  the  fifth  section  of  that  Amendment  gave  authority 
for  the  bill,  since  he  regarded  the  first  section  a  "  law  unto 
itself,"  which  could  be  executed  by  the  Courts.  The  only 
legislation,  in  his  opinion,  that  Congress  could  do  was  to 
enforce  the  provisions  of  the  Constitution  upon  the  laws  of 
the  States.  He  thought  the  question  presented  by  the  bill 
was  whether  the  States  should  be  obliterated  and  all  power 
concentrated  in  the  Central  Government.^^ 

Mr.  Bingham,  who  drafted  the  first  section  of  the  Four- 
teenth Amendment  with  the  exception  of  the  first  clause, 
followed  Mr.  Farnsworth  with  a  very  able  speech.  Prob- 
ably more  weight  should  be  given  the  utterances  of  Mr. 
Bingham  as  to  the  interpretation  of  that  section  than  to 

"Ibid.,  Appendix,  pp.  1 14-17. 


232       Adoption   of   the  Fourteenth  Amendment. 

those  of  any  other,  and  we  shall,  therefore,  give  consider- 
able attention  to  what  he  said  on  this  occasion.  It  was  his 
belief  that  the  last  three  Amendments  conferred  powers 
upon  Congress  never  before  granted  and  that,  under  them. 
Congress  could  enact  laws  for  the  protection  of  the  rights 
of  citizens  both  as  against  the  States  and  the  individuals  in 
the  States. 

Referring  to  the  question  of  Mr.  Farnsworth  as  to  why- 
he  had  changed  the  form  of  the  Amendment  which  he  re- 
ported in  February  to  that  of  the  first  section  of  the  Four- 
teenth Amendment,  he  replied  that  he  would  answer  it  and 
answer  it  truthfully.  He  stated  that  he  had  framed  the 
Article  as  reported  in  February,  and  the  first  section  of 
Article  Fourteen,  letter  for  letter  and  syllable  for  syllable, 
save  the  clause  defining  citizenship.  He  said  that  the  sec- 
tion as  it  now  stood  in  the  Fourteenth  Amendment  was 
more  comprehensive  than  it  was  in  the  form  first  presented 
in  February,  1866;  that  it  embraced  all  and  more  than  did 
the  first  proposition.  The  fifth  section  gave  the  grant  of 
power,  and  it  was  full  and  complete. 

He  then  gave  in  full  the  Amendment  as  reported  in 
February,  1866,  and  referred  to  the  fact  that  the  motion 
to  lay  it  on  the  table,  which  was  a  test  vote  on  its  merits, 
failed — ^the  motion  being  lost  by  a  vote  of  no  to  41;  that 
he  had  consented  to  and  voted  for  the  motion  to  postpone 
its  further  consideration  until  the  second  Tuesday  of  April ; 
that  afterwards,  in  the  joint  Committee  on  Reconstruction, 
he  had  introduced  the  section  as  it  now  stood  in  the  Con- 
stitution. The  last  clause  of  that  section  meant,  he  de- 
clared, that  no  State  should  deny  to  any  one  the  equal  pro- 
tection of  the  Constitution  of  the  United  States,  or  any  of 
the  rights  which  it  guaranteed  to  all  men,  nor  should  it  (the 
State)  deny  to  anyone  any  right  secured  to  him  by  the  laws 
and  treaties  of  the  United  States  or  of  such  State.  The 
first  section  was  declared  to  be  as  comprehensive  as  "  We 
will  sell  to  no  man,  will  not  deny  or  delay  to  any  man  right 
or  justice"  of  the  Magna  Charta.  Mr.  Bingham  also 
quoted  from  a  speech  of  Mr.  Farnsworth  in  advocacy  of 


Congressional  Interpretation  of  Amendment.      233 

the  Amendment  when  it  was  before  Congress  to  show  that 
the  latter  must  have  thought  that  it  could  be  enforced. 

He  then  proceeded  to  explain  why  he  had  changed  the 
form  of  the  Amendment  as  first  introduced  in  February. 
He  had  taken  counsel  of  Marshall  in  the  hope  that  "  the 
Amendment  might  be  so  framed  that  in  all  the  hereafter 
it  might  be  accepted  by  the  historian  of  the  American  Con- 
stitution and  her  Magna  Charta  '  as  the  keystone  of  Amer- 
ican liberty.' "  The  decision  of  Marshall  in  Barron  vs. 
the  Mayor  and  City  Council  of  Baltimore  (7  Peters,  p.  250)- 
induced  him,  he  declared,  to  attempt  to  impose  new  limita- 
tions upon  the  power  of  the  States  by  a  constitutional 
Amendment.  In  this  case  the  City  had  taken  private  prop- 
erty for  public  use,  without  compensation,  and  there  was  no 
redress  for  the  wrong  in  the  Supreme  Court  of  the  United 
States,  since  this  Court  held  that  the  first  eight  Amendments 
were  r^  limitations*^u]^on  the  power  of  the  United  States. 
Somewhat  later,  the  same  Court  ruled  that  the  Amendments 
did  not  extend  to  the  States.  This  was  in  the  Lessee  of 
Livingstone  vs.  Moore  et  al.  (7  Peters,  p.  552).  He  (Bing- 
ham) said  that  Jefferson  had  properly  described  the  first 
eight  Amendments  as  the  American  Bill  of  Rights.  He 
then  mentioned  the  principal  rights  secured  to  the  people 
by  those  Amendments,  but  only  secured  as  against  the 
United  States  and  not  against  the  States. 

Mr.  Bingham  then  stated  that,  while  reexamining  the 
case  of  Barron,  after  his  struggle  with  Congress  in  Febru- 
ary, he  had  noted  and  apprehended  as  never  before,  certain 
words  ysed  by  Marshall  in  that  decision.  He  quoted  the 
following  words  used  by  Marshall  in  reference  to  the  first 
eight  Amendments :  "  Had  the  f  ramers  of  these  Amend- 
ments intended  them  to  be  limitations  on  the  powers  of  the 
state  governments,  they  would  have  imitated  the  framers 
of  the  original  Constitution,  and  have  expressed  that  inten- 
tion." He  said  he  acted  upon  that  suggestion  and  imitated 
the  framers  of  the  original  Constitution.  Just  as  they  had 
said  "  No  State  shall  emit  bills  of  credit,  pass  any  bill  of 
attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 


234        Adoption   of  the  Fourteenth  Amendment. 

tions  of  contracts,"  so  had  he  said,  in  the  first  section  of 
the  Fourteenth  Amendment  that  "  No  State  shall  make  or 
enforce  any  law,"  etc.,  imitating  them  to  the  letter.  He 
then  added:  "I  hope  the  gentleman  (Mr.  Farnsworth) 
now  knows  why  I  changed  the  form  of  the  Amendment  of 
February,  1866." 

He  said  that  the  privileges  and  immunities  of  citizens  of 
the  United  States,  as  contradistinguished  from  citizens  of 
the  States,  were  chiefly  defined  in  the  first  eight  Amend- 
ments, and  in  order  to  show  the  scope  and  meaning  of  the 
first  section  of  the  Fourteenth  Amendment,  he  gave  these 
Amendments  in  full.  The  principal  rights  secured  to  the 
citizens  by  the  first  eight  Amendments  were  these:  free- 
dom of  religion,  of  speech,  and  of  the  press;  the  right 
peaceably  to  assemble,  and  to  petition  for  redress  of  griev- 
ances; the  right  to  keep  and  bear  arms;  the  inviolability 
of  their  homes  in  times  of  peace,  in  that  no  soldier  s|;iould 
be  quartered  in  any  house  without  the  consent  of  the  owner ; 
their  persons,  houses,  papers,  and  effects  secured  against 
unreasonable  searches  and  seizures ;  not  to  be  deprived  of 
life,  liberty,  or  property  without  due  process  of  law;  to 
have  trial  by  jury ;  to  be  informed  of  the  nature  and  cause 
of  the  accusations  that  might  be  made  against  them,  and  to 
be  confronted  with  the  witnesses  against  them;  excessive 
bail  not  to  be  required,  nor  cruel  and  unusual  punishments 
inflicted. 

After  giving  the  Amendments  in  full,  Mr.  Bingham  said : 

"  These  eight  Articles  I  have  shown  never  were  limitations 

upon  the  power  of  the  States,  until  made  so  by  the  Four- 

/teenth  Amendment.     The  words  of  that  Amendment,  'no 

/    State  shall  make  or  enforce  any  law  which  shall  abridge 

/     the   privileges   or   immunities   of   citizens   of   the   United 

■      States,'  are  an  express  prohibition  upon  every  State  of  the 

,      Union,  which  may  be  enforced  under  existing  laws  of  Con- 

V     gress,  and  such  other  laws  for  their  better  enforcement  as 

"^XCpngress  may  make." 

He  then  referred  to  Mr.  Shellabarger's  reference  to  the 


Congressional  Interpretation  of  Amendment.      235 

decision  in  the  case  of  Corfield  vs.  Coryell  (4  Wash.  Cir. 
Ct.  Rep'ts,  p.  380),  but  said  other  and  different  privileges 
and  immunities  than  these  were  secured  by  the  Fourteenth 
Amendment,  since  this  Amendment  declared  that  no  State 
should  abridge  the  privileges  and  immunities  of  citizens  of 
the  United  States,  and  that  these  privileges  and  immunities 
were  defined  in  the  first  eight  Amendments.  Before  the 
ratification  of  the  Fourteenth  Amendment,  it  was  in  the 
power  of  the  States  to  deny  to  any  citizens  the  right  of  trial 
by  jury,  and  that  it  was  done,  he  declared.  Before  that  the 
States  could  and  did,  he  asserted,  abridge  the  freedom  of 
the  press.  But  since  the  ratification  of  that  Amendment 
the  States  could  not  do  these  things  nor  could  they  send 
men  to  the  penitentiary  for  teaching  an  Indian  to  read  the 
Bible,  as  had  been  done  in  Georgia. 

/  Under  the  amended  Constitution  Congress  had  the  power, 
he  asserted,  to  provide  against  the  denial  of  rights  by  the 
States,  whether  the  denial  was  in  the  form  of  acts  of  omis- 

^  sion  or  of  commission.  He  said  that  citizens  had  been  de- 
nied trial  by  jury,  had  been  deprived  of  property  without 
compensation,  had  been  restricted  in  the  freedom  of  the 
press  and  of  speech,  and  in  the  rights  of  conscience,  and 
they  had  no  remedy,  but  that  Congress  could,  under  the 
Fourteenth  Amendment,  provide  by  law  against  such  abuses 
and  such  denials  as  these  whether  committed  by  individuals 
or  by  States.  He  said  the  Thirteenth,  Fourteenth  and  Fif- 
teenth Amendments  were  all  negative,  but  that  nevertheless 
new  limitations  were  imposed  upon  the  States  by  them, 
while,  with  each  of  them,  there  was  coupled  the  grant  of 
power  to  enforce  them.  He  referred  to  the  Enforcement 
Act  of  May  preceding  to  show  that  Congress  believed  it 
had  the  pow^r  to  enforce  those  Amendments,  since  an  Act 
to  enforce  one  of  them  made  it  possible  to  pass  an  Act  to 
enforce  the  others.  He  declared  that,  by  virtue  of  these 
Amendments,  Congress  could  provide  by  law  that  no  man 
should  be  tried  for  a  criminal  offence  in  any  state  court 
without  a  fair  and  impartial  trial  by  jury,  but  said  Congress 
did  not  possess  that  power  before  these  Amendments  be- 


236        Adoption   of   the   Fourteenth  Amendment. 

came  a  part  of  the  Constitution,  Congress  could  also  pro- 
vide that  no  one  should  be  deprived  of  his  property  without 
compensation.  This  was  also  true  with  regard  to  the  free- 
dom of  speech,  the  freedom  of  the  press,  the  right  peace- 
ably to  assemble,  etc.,  since  they  were  of  the  rights  of  citi- 
zens of  the  United  States  defined  in  the  Constitution  and 
guaranteed  by  the  Fourteenth  Amendment,  which  Con- 
gress was  empowered  to  enforce^/  If  Congress  should  en- 
act penal  laws  for  the  protection  of  these  rights,  those  vio- 
lating them  would  have  to  answer  for  the  crime,  and  not 
the  States,  he  asserted,  since  the  United  States  punished 
men,  not  States,  for  a  violation  of  its  laws.^* 

The  most  important  and  valuable  part  of  his  speech,  we 
take  it,  was  that  giving  the  reason  for  his  changing  the 
form  of  the  Amendment  as  reported  in  February  to  that  of 
the  first  section  of  the  Fourteenth  Amendment — making  it 
negative  instead  of  affirmative.  Of  course  this  includes  his 
statement  of  what  he  intended  to  accomplish  by  that  section, 
what  rights  and  privileges  he  thought  he  was  putting  be- 
yond the  power  of  the  States  to  deny  or  abridge,  and  what 
limitations  he  intended  to  put  upon  the  States  as  well  as 
what  powers  were  being  conferred  upon  Congress  by  the 
first  section  of  that  Amendment.  His  statement  that  the 
first  eight  Amendments  were  made  applicable  to  the  States 
but  corroborates  that  made  by  Senator  Howard  when  the 
Amendment  was  before  the  Senate  in  May,  1866,  and  which 
statement  no  one  questioned  at  the  time. 

Mr.  Storm,  of  Pennsylvania,  said  that  little  attention  was 
given  to  the  first  section  when  the  Amendment  was  before 
the  House,  because  the  attention  of  the  country  was  called 
to  the  question  of  changing  the  basis  of  representation.  He 
furthermore  declared  that  if  the  views  now  announced  by 
those  advocating  the  bill  had  been  uttered  when  the  Amend- 
ment was  before  Congress,  it  would  never  have  been 
ratified,  and  added :  "  If  the  monstrous  doctrine  now  set  up 
as  resulting  from  the  provisions  of  that  Fourteenth  Amend- 
"Ibid.,  Appendix,  pp.  83-85. 


Congressional  Interpretation   of  Amendment.      237 

ment  had  ever  been  hinted  at  that  Amendment  would  have 
received  an  emphatic  rejection  at  the  hands  of  the  people." 
He  also  stated  that  the  first  section  was  but  a  reenactment 
of  the  Civil  Rights  Bill  through  superabundant  caution.**' 
Mr.  Storm  seems  to  have  stated  the  question  fairly,  and  no 
doubt  he  was  right  in  saying  that  had  the  people  been  in- 
formed of  what  was  intended  by  the  Amendment,  they  would 
have  rejected  it.  But  it  is  equally  true  that  there  were  state- 
ments made  by  men  in  Congress  at  the  time  to  show  some- 
thing of  what  was  really  meant  by  it,  but  these  statements 
seem  to  have  been  lost  sight  of  on  account  of  the  more  stir- 
ring and  exciting  political  questions  of  the  time. 

Mr.  Lowe,  of  Kansas,  said  if  the  first  section  could  only 
serve  to  abrogate  or  nullify  the  acts  or  legislation  of  the 
States,  then  it  was  of  little  practical  use,  since  the  laws  of  the 
States  might  be  all  right,  yet  the  people  be  deprived  of  their 
rights.  He  maintained  that  it  was  the  intention,  taking  the 
first  and  fifth  sections  together,  to  enable  Congress  to  secure 
to  citizens  by  Federal  legislation  the  rights  guaranteed.'^' 

Mr.  Rice,  of  Illinois,  held  that  the  first  section  was  only 
a  limitation  upon  the  States,  and  not  a  grant  of  power  to 
Congress/  He  criticised  the  bill  on  the  ground  that  it  gave 
no  classification  or  enumeration  of  the  rights  and  privileges 
sought  to  be  protected  by  it.  He  stated  that  it  could  not 
be  shown  that  there  was  a  denial  of  the  equal  protection  of 
the  laws  by  the  Constitution  or  laws  of  any  State,  and  if 
there  should  be,  such  laws  or  provisions  of  the  Constitution 
would  be  void,  and  that  the  remedy  would  be  found  in  the 
courts,  not  in  Congress."*^ 

Mr.  Biggs,  of  Delaware,  quoted  the  New  York  Evening 
Post,  a  Republican  paper,  as  saying  that  the  bill  was  uncon- 
stitutional, and  if  enforced,  would  overthrow  our  whole  sys- 
toh  of  Government,  and  create   a  centralized   despotism."**  . 

"Ibid.,  Appendix,  p.  87. 
"  Ibid,  p.  375- 
■"  Ibid.,  p.  396. 
'*  Ibid.,  p.  417. 


238        Adoption   of   the  Fourteenth  Amendment. 

Messrs.  Bright,  of  Tennessee,  and  McHenry,  of  Kentucky, 
held  views  similar  to  those  of  Mr.  Rice.^^ 

Mr.  Madison,  in  the  forty-fifth  number  of  the  Federalist, 
says :  "  The  powers  reserved  to  the  several  States  will  extend 
to  all  the  objects  which,  in  the  ordinary  course  of  affairs, 
concern  the  lives,  liberties,  and  properties  of  the  people,  and 
the  internal  order,  improvement,  and  prosperity  of  the  State." 
Mr.  Bingham  quoted  this  passage  from  the  Federalist  in  the 
debate  on  his  February  Amendment,  says  Mr.  Garfield,  and 
said :  "  These  words  of  Madison  are  very  significant.  The 
fact  is  that  Congress  has  never,  by  official  enactment  in  all 
the  past,  attempted  to  enforce  these  rights  of  the  people  in 
any  State  of  the  Union."  (39th  Cong.,  p.  1093.)  He  is 
also  quoted  as  saying  that  Congress  did  not  possess  the 
power  at  that  time  to  enforce  the  citizens'  right  to  life,  lib- 
erty, and  property  in  South  Carolina  after  her  state  govern- 
ment should  be  recognized  and  her  constitutional  relations 
restored.  Mr.  Garfield  also  quoted  Bingham's  speech  on 
Civil  Rights  Bill,  March  9,  1866,  to  the  same  eifect 
(p.  1291).  The  speeches  of  Shellabarger  and  Delano  on 
this  same  bill  (pp.  1291-94  and  appendix,  p.  158)  were 
quoted  to  show  that  Congress  did  not  possess  the  power 
to  legislate  in  regard  to  life,  liberty,  and  property.  This 
was  before  the  Fourteenth  Amendment  had  become  a  part 
of  the  Constitution,  and  Mr.  Garfield  stated  that  the  last 
three  Amendments  had  enlarged  the  functions  of  Congress 
to  some  extent. 

In  discussing  the  first  section  of  Article  Fourteen  of  the 
Amendment,  Mr.  Garfield  stated  that  it  should  be  borne  in 
mind  that  the  debate  on  the  pending  bill  would  become  his- 
torical, since  it  would  be  the  earliest  legislative  construction 
given  to  that  clause  of  the  Amendment.  "  Not  only  the 
words  which  we  put  into  law,  but  what  shall  be  said  here 
in  the  way  of  defining  and  interpreting  the  meaning  of  the 
clause,  may  go  far  to  settle  its  interpretation  and  its  value 
to  the  country  hereafter."  Mr  Garfield  then  proceeded  to 
give  a  brief  account  of  the  history  of  the  first  section,  quot- 

"  Ibid.,  pp   420  and  429. 


Congressional  Interpretation  of  Amendment.      239 

ing  from  the  speeches  of  Messrs.  Higby,  Hale,  Hotchkiss, 
Conkling  and  Bingham  on  the  Amendment  proposed  by 
Bingham  in  February  to  show  the  character  of  the  Amend- 
ment. Mr.  Higby  favored  it,  whereas  Messrs.  Hale,  Hotch- 
kiss and  Conkling  opposed  it.  He  stated  that  the  first  reso- 
lution was  a  plain,  unambiguous  proposition  to  empower 
Congress  to  legislate  directly  upon  all  citizens  in  regard  to 
life,  liberty  and  property.  Mr.  Garfield  said  it  became  evi- 
dent, both  to  the  members  of  the  Senate  and  of  the  House, 
after  this  debate,  that  it  could  not  command  a  two  thirds 
vote  of  Congress,  and  that  it  was  virtually  withdrawn  on 
this  account.  He  also  gave  a  brief  account  of  the  first  sec- 
tion as  introduced  April  30,  1866,  declaring  that  the  inter- 
pretation given  to  it  by  Mr.  Stevens  was  followed  by  almost 
every  Republican  who  spoke  on  the  measure,  and  that  it  was 
generally  with  scarcely  an  exception,  spoken  of  as  a  limita- 
tion of  the  powers  of  the  States  to  legislate  unequally  as  to 
life  and  property.  He  said  that  no  Republican  had  made  any 
objection  to  this  section  similar  to  those  made  against  the 
former  resolution,  but  that  many  had  expressed  their  regret 
that  it  was  not  sufficiently  strong.  He  quoted  from  Bing- 
ham's speech  to  show  that  the  latter  thought  that  the  State 
would  have  to  deny  the  privileges  or  immunities  of  citizens 
before  Congress  would  have  the  power  to  act. 

He  further  asserted  that  it  would  not  be  denied,  as  a  mat- 
ter of  history,  that  the  first  section  of  the  Fourteenth  Amend- 
ment received  many  Republican  votes  that  the  resolution  of 
February  could  not  have  received. 

He  then  proceeded  to  compare  the  two,  placing  them  in 
juxtaposition,  and  declared  that  the  rejected  one  would  have 
granted  the  power  to  Congress  to  legislate  directly  for  the 
protection  of  life,  liberty,  and  property  within  the  States, 
whereas  the  one  adopted  exerted  its  force  directly  upon  the 
States,  placing  limitations  upon  them,  and  enabling  Congress 
to  enforce  those  limitations.  They  gave  Congress  plenary 
power  over  these  subjects  to  the  exclusion  of  the  States, 
whereas  the  other  merely  limited,  but  did  not  oust,  the  juris- 
diction of  the  States.     Unless  both  the  history  and  the  Ian- 


240       Adoption   of   the  Fourteenth  Amendment. 

giiage  of  the  clauses,  he  continued,  be  ignored,  the  force  and 
effect  of  the  rejected  clause  could  not  be  given  to  the  section 
as  it  stands  in  the  Constitution;  and  Mr.  Shellabarger 
had  done  this.  Mr.  Garfield  considered  the  last  clause  of  the 
first  section  of  the  Amendment  as  the  most  valuable  of  the 
section.  He  said  it  did  not  require  the  laws  of  the  States  to 
be  perfect,  but  whether  unwise  or  unjust,  they  must  be  equal 
in  their  provisions. 

Speaking  of  the  bill  for  the  enforcement  of  the  Amend- 
ment, he  declared  that  its  first  section  was  wise  and  salutary, 
and  clearly  within  the  power  of  Congress.  Furthermore, 
that  if  the  state  laws  were  just  and  equal  on  their  face,  but 
were  not  enforced,  either  by  neglect  or  refusal,  then  Congress 
could,  by  virtue  of  the  last  clause  of  section  one  of  the  Four- 
teenth Amendment,  provide  for  doing  justice  to  those  who 
were  thus  denied  the  equal  protection  of  the  laws.  His  ob- 
jection was  to  the  second  section  of  the  bill,  and  he  stated 
that  if  it  were  so  amended  as  not  to  assert  the  power  of 
i  Congress  to  take  jurisdiction  until  the  equal  protection  was 
denied,  and  not,  in  any  way,  to  assume  the  original  jurisdic- 
tion of  the  rights  of  private  persons  and  of  property  within 
the  States,  he  would  heartily  support  it.  He  was  not  opposed 
to  a  proper  bill,  he  declared,  but  felt  -bound  to  enter  his  pro- 
test against  a  dangerous  and  unwarranted  interpretation  of 
the  recent  Amendments.  Mr.  Shellabarger  inquired  how  the 
Enforcement  Act  of  May,  1870,  could  be  regarded  as  consti- 
tutional under  his  interpretation  of  the  Amendment,  since  the 
Fifteenth  Amendment  was  also  a  negation  upon  the  power  of 
the  States.  To  this  Mr.  Garfield  replied  that  the  provision  in 
the  old  Constitution  in  regard  to  election  of  Representatives, 
together  with  the  Fifteenth  Amendment,  authorized  it.''**  It 
seems  that  this  reply  was  hardly  sufficient,  and  one  feels  that 
Mr.  Shellabarger's  veiled  suggestion  of  the  illogical  position 
of  Mr.  Garfield,  after  having  voted  for  the  Enforcement  Act 
of  1870,  was  perfectly  warranted. 

Mr.  Cox,  of  New  York,  took  the  position  that  the  Amend- 
ment had  to  do  only  with  the  actions  of  the  States,  and  since 

"Ibid.,  Appendix,  pp.  150-54. 


Congressional  Interpretation  of  Amendment.      241 

no  State  had  abridged  the  privileges  of  citizens,  the  bill  was 
not  a  proper  one."^  Mr.  Coburn,  of  Indiana,  held  that 
affirmative  action  or  legislation  on  the  part  of  the  State  was 
not  necessary  to  authorize  the  bill,  since  the  failure  of  the 
State  to  see  to  it  that  every  one  was  protected  in  his  rights 
was  just  as  flagrant  as  a  positive  denial  of  protection.*'^ 

Mr.  Holman,  of  Indiana,  maintained  that  the  fifth  section 
of  the  Fourteenth  Amendment  had  reference  only  to  the  sec- 
ond and  third  sections  of  that  Amendment,  and  did  not  apply 
at  all  to  the  first  section.  He  also  contended  that  if  the  limi- 
tations or  denials  of  the  power  of  the  States  in  the  first  sec- 
tion were  to  be  construed  as  conferring  legislative  power  on 
Congress,  then  there  was  no  limit  to  the  power  of  Congress 
in  respect  to  the  domestic  afifairs  of  the  States.  This  was  also 
manifest,  he  said,  from  the  fact  that  the  advocates  of  the  bill 
did  not  seem  to  recognize  any  such  limit  and  had  not 
attempted  to  define  the  limit  or  boundary  between  federal 
and  state  jurisdiction.^^  Mr.  Golladay,  of  Tennessee,  took 
a  position  similar  to  that  of  Mr.  Holman  in  regard  to  the 
effect  and  application  of  the  fifth  section,  and  declared  that, 
if  the  powers  claimed  in  debate  were  once  conceded  to  Con- 
gress, there  would  be  no  further  need  of  state  constitutions, 
the  Central  Government  becoming  supreme  in  every  imagin- 
able case,  from  the  pettiest  police  regulation  to  the  loftiest 
questions  of  state.^* 

Mr.  Dawes,  of  Massachusetts,  who  was  a  member  of  Con- 
gress when  the  Fourteenth  Amendment  was  submitted  to  the 
States,  said  that  the  rights,  privileges,  and  immunities  sought 
to  be  protected  by  the  bill  were  those  which  were  found  in  the 
original  Constitution,  and  in  the  Amendments,  including  the 
Thirteenth  and  Fifteenth  Amendments,  thus  making  the  first 
section  of  Article  Fourteen  include  all  these  rights  and  privi- 
leges. He  enumerated  the  rights  secured  by  the  first  eight 
Amendments  and  by  the  last  three  Amendments,  thus  leav- 

"  Ibid.,  p.  455. 
«*  Ibid.,  p.  459- 

''Ibid.,  Appendix,  pp.  259-60. 
"Ibid.,  Appendix,  p.  160. 
16 


242        Adoption   of   the  Fourteenth  Amendment. 

ing  no  room  for  doubt  as  to  what  he  meant.  He  maintained 
that  Congress  had  the  power  to  guard,  protect  and  enforce 
all  the  rights  which  he  had  enumerated,  and  that  this  could 
be  done,  either  by  giving  any  citizen,  whose  rights  or  privi- 
leges were  denied  or  abridged,  a  civil  remedy  in  the  Federal 
Court  for  any  damage  sustained;  or  by  the  indictment 
and  punishment  of  any  offender  who  should  "  invade,  trench 
upon,  or  otherwise  impair  any  right,  privilege,  or  immunity 
of  any  citizen."  *° 

Mr.  Wilson,  of  Indiana,  held  almost  the  same  view  as 
that  of  Mr.  Dawes  regarding  the  power  of  Congress  to 
secure  the  rights  and  privileges  of  citizens;  saying  that  the 
last  clause  of  the  first  section  of  Article  Fourteen  was  equiva- 
lent to  "  no  State  shall  fail  or  refuse  to  provide  for  the  equal 
protection  of  the  laws  to  all  persons  within  its  jurisdiction." 
He  also  held  that  Congress  was  made  the  exclusive  judge  as 
to  the  necessity  for  congressional  legislation.  The  substance 
of  his  views  are  as  follows : 

1.  The  last  clause  of  section  one  meant  that  equal  protec- 
tion should  be  provided. 

2.  The  failure  to  enact  proper  laws  or  to  enforce  them  was 
a  denial  of  such  equal  protection. 

3.  Congress  possessed  the  power  to  enact  laws  to  secure 
equal  protection  where  such  was  the  case. 

4.  Congress  was  the  sole  judge  as  to  the  necessity  of  leg- 
islation as  well  as  to  the  remedies  necessary  to  be  applied.®* 

Mr.  T)mer,  of  Indiana,  said  that  the  obligation  imposed 
on  Congress  to  see  that  equal  protection  was  not  denied  to 
any  one  was  all  the  justification  he  wanted  for  supporting  the 
bill.®^  Mr.  Lansing,  of  New  York,  believed  the  grants  of 
power  given  by  the  recent  constitutional  Amendment  were  in 
vain  unless  Congress  could  carry  them  into  effect  by  appro- 
priate legislation.^^  Mr.  Willard,  of  Vermont,  held  that  the 
Amendment  was  intended  only  to  secure  an  equality  of  rights 

"  Ibid.,  pp.  475-77. 

*  Ibid,  pp.  481-83. 
"  Ibid.,  p.  487. 

*  Ibid.,  p.  487. 


Congressional  Interpretation   of  Amendment.      243 

and  immunities,  and  that  only  a  denial  of  that  equality  could 
be  made  punishable  by  United  States  laws,  though  he  be- 
lieved that  anything  secured  to  citizens  by  that  Amendment 
could  be  enforced  by  the  laws  of  the  United  States.  He 
admitted  that  the  difference  between  himself  and  some  of  the 
others  was  as  to  the  meaning  of  the  Amendment,  and  not  as 
to  the  power  which  might  be  used  to  enforce  it.  He  consid- 
ered the  rights  and  privileges  mentioned  in  the  case  of  Cor- 
field  vs.  Coryell  and  those  enumerated  in  the  Civil  Rights 
Bill  of  1866  to  be  those  of  citizens  of  the  United  States, 
and  so  could  be  secured  by  Congress.  He  did  not  think 
the  Amendment  accomplished  very  much,  however,  and 
stated  that  the  Fourteenth  Amendment  did  not  modify  or 
change  the  previous  Constitution  in  any  way.^^ 

Mr.  Burchard,  of  Illinois,  said  he  believed  the  law  of  May, 
1870,  secured  all  the  rights  and  privileges  secured  by  the 
Constitution,  but  was  willing  to  vote  for  a  bill  to  give  them 
greater  efficiency  if  those  enactments — the  bill  of  1870  and 
Civil  Rights  Bill  of  1866  which  was  reenacted  by  section 
eighteen  of  the  Act  of  1870 — were  not  sufficient.  He  held 
that  the  clause  of  the  Amendment  defining  citizenship  did 
not  enlarge  the  rights  and  privileges  belonging  to  citizens, 
but  merely  increased  the  number  of  those  who  might  enjoy 
them.  He  stated  that  some  of  these  privileges  and  immu- 
nities were  enumerated  in  the  Civil  Rights  Bill  passed  by 
the  same  Congress  which  proposed  the  Amendment.  He 
did  not  see  how  the  application  of  the  first  eight  Amend- 
ments to  the  States  could  be  held  to  confer  upon  the  Fed- 
eral Courts  the  right  to  punish  for  murder  or  other  offenses 
against  life  and  person.  He  held  that  the  deprivation  of 
any  of  the  rights  or  the  denial  of  the  equal  protection  of 
the  laws  must  be  by  the  State  through  its  officers,  nor  was 
it  ever  enjoined  on  the  State,  in  his  opinion,  to  provide 
protection,  but  that  it  should  not  discriminate  in  its  protec- 
tion, either  by  the  legislative,  executive,  or  judicial  depart- 
ments. He  said  the  debates  on  the  Amendment  showed 
that  it  was  not  intended  to  confer  on  Congress  the  power 

"  Ibid.,  Appendix,  pp.  188-89. 


244        Adoption   of   the   Fourteenth   Amendment. 

to  pass  affirmative  legislation  to  enforce  its  provision  upon 
private  individuals.  He  thought,  however,  that  the  Gen- 
eral Government  had  the  power  to  punish  state  officers  who 
willfully  and  wrongfully  made  or  enforced  unconstitutional 
laws  of  the  State  or  who  neglected  the  duties  enforced 
upon  them  by  the  Constitution  of  the  United  States.  He 
even  thought  that  the  attempts  of  individuals  to  prevent 
such  officers  from  performing  their  duties  could  be  pun- 
ished by  the  United  States.'^" 

Mr.  Poland,  of  Vermont,  who  was  a  member  of  the  Senate 
when  the  Amendment  was  proposed,  said  he  did  not  believe 
it  gave  Congress  the  power  to  go  into  the  States  and  legislate 
for  the  punishment  of  ordinary  offences  against  persons  and 
property,  this  power  being  left  with  the  States,  and  that  even 
if  the  States  should  fail  to  punish  a  crime  committed  within 
its  borders.  Congress  could  not  provide  a  law  for  punishing  it. 
But  he  held  that  if  a  State  denied  the  equal  protection  of  the 
laws,  or  if  proper  laws  were  not  enforced,  or  if  any  one 
attempted  to  prevent  the  officers  from  carrying  out  the  laws, 
then  Congress  could  provide  for  the  punishment  of  such  an 
offence.  He  approved  of  Mr.  Farnsworth's  general  propo- 
sition in  regard  to  the  powers  of  Congress  under  the  Consti- 
tution.'^^ He,  however,  as  well  as  Messrs.  Farnsworth,  Gar- 
field and  others,  who  contended  that  Congress  did  not  have 
the  power  to  enact  affirmative  legislation  applicable  to  indi- 
viduals, must  have  thought  that  the  bill  did  not  do  this,  for 
they  voted  for  it.  In  fact  Mr.  Garfield's  objection  was  not 
to  the  first  section,  but  to  the  second,  and,  as  it  was  amended 
in  some  respects,  he  supported  it.'^^ 

The  bill,  after  a  debate  of  nine  days,  on  four  of  which 

evening  sessions  were  held,  passed  the  House,   April   6, 

1871,  by  a  strict  party  vote  of  one  hundred  and  eighteen 

^to  ninety-one,  with  only  eighteen  not  voting.     Of  the  one 

"  Ibid.,  Appendix,  pp.  313-15. 

"Ibid.,  p.  514. 
Ibid.,  p.  518.    The    Democrats    had    voted,  July   11,   1870,   and 
again  at  this   session,   said   Mr.    Shellabarger,  that  the  Fourteenth 
Amendment  was  not  a  part  of  the  Constitution.    Thirty-two  had  so 
voted  in  1870,  and  seventy-five  in  1871. 


Congressional  Interpretation  of  Amendment.      245 

hundred  and  eighteen  voting  for  the  bill,  fifteen,  some  of 
whom  were  the  strongest  men  in  the  Republican  party, 
had  been  members  of  Congress  when  the  Fourteenth 
Amendment  was  proposed,  Messrs.  Dawes,  Bingham,  Shel- 
labarger  and  Garfield  being  among  the  number.  Mr. 
Blaine  was  speaker,  and  so  did  not  vote,  though  no  doubt 
he  was  in  favor  of  the  bill.  Two  others  who  were  members 
of  the  Thirty-ninth  Congress  were  absent,  but  were  prob- 
ably in  favor  of  the  bill.^^ 

The  Senate  had  been  debating  a  resolution  introduced  by 
Mr.  Sherman,  directing  the  Committee  on  the  Judiciary  to 
report  a  bill  for  the  suppression  of  violence  in  the  South, 
and  in  an  indirect  way  the  question  of  the  power  of  Con- 
gress to  enact  such  legislation  was  involved.  Speaking  on 
this  topic,  April  3,  1871,  Senator  Blair,  of  Maryland,  said 
that  the  Fourteenth  Amendment  as  claimed  by  its  advocates 
at  the  time  it  was  proposed  did  not  confer  citizenship,  but 
merely  defined  it  as  it  had  existed  from  the  beginning.  He 
cited  the  debates  which  took  place  on  it  to  show  that  the 
purpose  of  the  first  section  was  to  prevent  the  repeal  of  the 
Civil  Rights  Bill  of  1866,  and  that  both  the  Civil  Rights 
Bill  and  the  Fourteenth  Amendment  were  directed  against 
discriminating  state  laws.  He  maintained  that  the  claim 
of  those  who  advocated  the  proposed  action  was  in  efifect 
that  the  Amendment  had  abolished  the  state  governments, 
permitting  them  to  subsist  by  sufferance  only.'^* 

Mr.  Morton,  of  Indiana,  speaking  the  next  day  on  the 
same  subject,  declared  that  the  last  clause  of  the  first  sec- 
tion made  a  failure  to  secure  the  equal  protection  of  the 
laws  equivalent  to  a  denial,  whether  this  failure  was  willful 
or  merely  the  result  of  inability,  and  was,  in  fact,  the  same 
as  if  it  read :  "  Every  person  in  the  United  States  shall  be 
entitled  to  the  equal  protection  of  the  laws."  It  was  thus 
an  affirmative  provision  by  its  nature,  and  not  simply  a 
negative  on  the  power  of  the  States.  He  said  that  the 
Government  could  act  only  upon  individuals,  and  not  upon 

'^Ibid.,  p.  522. 

"Ibid.,  Appendix,  p.  117. 


246        Adoption   of  the  Fourteenth  Amendment. 

States,  so  that  any  legislation  that  Congress  might  enact 
must  operate  upon  individuals.  This  principle  was  recog- 
nized by  Congress,  he  continued,  in  the  act  passed  the  year 
previous  for  the  enforcement  of  the  Fifteenth  Amendment, 
and  since  the  Fourteenth  Amendment  was  in  form  similar 
to  the  Fifteenth,  the  same  principle  applied  here/° 

Mr,  Frelinghuysen,  of  New  Jersey,  declared  that  the 
change  wrought  in  the  fundamental  law  by  the  Fourteenth 
Amendment  was  a  most  important  one,  and  that  there  was 
danger,  if  its  words  were  followed,  that  the  change  would 
be  carried  too  far  for  the  real  interests  of  the  country.  He 
declared  that  it  secured  much  more  than  "  equality "  be- 
tween whites  and  blacks,  and  quoted  from  the  decision  of 
the  Circuit  Court  of  the  United  States  for  the  district  of 
Louisiana,  June,  1870  (i  Abbott,  p.  338,  Slaughter  House 
Cases)  to  show  that  the  Court  held  that  the  privileges  and 
immunities  of  all  citizens  should  be  absolutely  unabridged 
and  unimpaired.  The  Court  said  that  the  main  object  may 
have  been  to  remedy  one  particular  phase  of  social  and 
political  wrong,  but  that  it  bore  a  broader  meaning  and 
reached  social  evils  never  before  prohibited  by  constitu- 
tional enactment,  and  that  it  was  to  be  presumed  that 
people  knew  what  they  were  doing  when  they  gave  their 
imprimatur  to  it,  and  meant  to  decree  what  had,  in  fact, 
been  decreed.  Mr.  Frelinghuysen  regarded  the  "  pursuit 
of  happiness  "  as  the  most  comprehensive  privilege  of  the 
citizen.  He  said  the  privileges  and  immunities  of  Ameri- 
can citizens  were  to  be  found  in  the  Declaration  of  Inde- 
pendence, and  that  they  were  further  defined  in  Corfield 
vs.  Coryell.  He,  like  Mr.  Morton,  said  that  the  United 
States  could  deal  only  with  individuals  and  not  with  States, 
and  so  could  deal  only  with  offenders  who  violated  these 
privileges,  and  not  with  the  States  or  their  officials,  to  com- 
pel proper  legislation  or  enforcement.  He  did  not  think  it 
expedient  to  carry  the  enforcement  of  the  Amendment  to 
the  extent  of  making  the  criminal  code  of  the  United  States 
include  all  offenses  that  affect  life,  liberty  and  property, 

"Ibid.,  Appendix,  p.  251. 


Congressional  Interpretation  of  Amendment.      247 

since  this  would  make  it  too  comprehensive,  though  he 
thought  that  it  would  be  constitutional  to  do  so,  but  not 
expedient  or  proper  at  that  timeJ^ 

Mr.  Pratt,  of  Indiana,  regarded  the  Bill  of  1866  as  a 
proper  one  under  the  Thirteenth  Amendment,  .  and  held 
that  the  means  employed  to  effect  the  deprivation  of  the 
rights  secured  by  the  bill,  might  in  law  be  an  assault  and 
battery,  or  mere  misdemeanors  ordinarily  punishable  exclu- 
sively in  the  state  courts,  but  they  became .  offenses  against 
the  United  States  if  they  related  to  the  class  of  persons 
referred  to  in  the  Amendment  and  whose  rights  were  in- 
tended to  be  secured  by  the  Civil  Rights  Bill.  He  held  also 
that  the  provisions  of  the  Fourteenth  Amendment  were  more 
than  limitations  upon  the  States,  but  that  they  were  positive 
guarantees  by  the  United  States  that  the  privileges  and 
immunities  referred  to  therein  as  well  as  the  equal  protec- 
tion of  the  laws  should  be  enjoyed.  He  said  that  any  legis- 
lation that  was  necessary  to  secure  the  enjoyment  of  the 
civil  and  political  rights  secured  by  the  Fourteenth  and 
Fifteenth  Amendments,  without  let,  hindrance,  or  molesta- 
tion, was  constitutional  and  that  the  specific  power  to  legis- 
late was  granted.  He  declared  that  the  negroes  could  not 
only  contract,  hold  property,  sue,  give  evidence,  sit  upon 
juries,  but  were  eligible  to  every  office,  judicial,  legislative, 
or  executive,  subject  to  no  disability  except  such  as  crime 
imposes.  He  held  views  similar  to  those  expressed  by 
Messrs.  Morton  and  Frelinghuysen  as  to  whom  the  legisla- 
tion of  Congress  should  apply.  He  cited  the  act  of  May, 
1870,  as  a  precedent.'^'^ 

The  bill  as  passed  by  the  House  was  referred  to  the 
Judiciary  Committee  of  the  Senate,  Friday,  April  7,  1871, 
and  reported  back  the  Monday  following,  but  not  consid- 
ered until  the  next  day,  April  11.  Mr.  Stockton,  of  New 
Jersey,  took  the  position  that  the  Enforcement  Bill  was 
unconstitutional  in  that  Congress  could  not  authorize  the 
President  or  any  one  to  deprive  a  person  of  life,  liberty, 


"Ibid.,  pp.  499-501. 
"Ibid.,  pp.  S04-6. 


248        Adoption   of   the  Fourteenth  Amendment. 

or  property  without  due  process  of  law,  or  put  him  twice 
in  jeopardy  for  the  same  offense.  The  Fourteenth  Amend- 
ment did  not  authorize  the  violation  of  the  absolute  and 
express  restrictions  contained  in  the  Constitution,  he  de- 
clared, because  it  prohibited  the  States  from  doing  what 
Congress  had  always  been  prohibited  from  doing.  The 
construction  of  the  Amendment  necessary  to  make  the  En- 
forcement Bill  constitutional,  he  continued,  would  be  that 
because  no  State  could  deny  any  of  the  privileges  of  citi- 
zens, Congress  might;  "or,  in  other  words,  the  denial  of 
the  power  to  a  State  confers  it  on  Congress."  The  general 
statements  made  in  his  speech  are  sufficient,  it  seems,  to 
warrant  the  statement  that  he  thought  the  Amendment  had 
made  the  first  eight  Amendments  applicable  to  the  States — 
or  at  least  the  Fifth  Amendment.  In  referring  to  the  lat- 
ter, he  said:  "It  is  manifestly  absurd  to  call  this  a  grant 
of  power  to  the  States.  This  was  a  prohibition  to  the 
United  States,  as  the  Fourteenth  Amendment  is  to  the 
States,  and  the  power  to  enforce  was  a  matter  of  course." 
In  closing,  he  said :  "  Mr.  President,  I  lay  my  hands  on 
this  Bill  of  Rights,  and,  in  the  name  of  my  constituents,  I 
*  do  claim,  demand,  and  insist  upon  all  and  singular  the 
premises  as  their  undoubted  rights  and  liberties ' ;  the  true, 
ancient  and  indubitable  rights  of  the  people  of  this 
country."  ''^ 

Mr.  Trumbull,  discussing  the  bill,  maintained  that  the 
Amendment  had  not  extended  the  rights  and  privileges  of 
citizenship  one  iota,  and  that  the  National  Government  was 
not  founded  for  the  purpose  of  protecting  the  individual  in 
his  rights  of  person  and  property.  At  this  point,  Mr. 
Carpenter,  of  Wisconsin,  interjected  that  he  understood 
that  the  Fourteenth  Amendment  had  wrought  that  very 
,  change,  and  that  it  was  "  now  put  in  that  aspect  and  does 
,  protect  them."  To  this  Mr.  Trumbull  replied :  "  Then  it 
would  be  an  annihilation  entirely  of  the  States.  Such  is 
not  the  Fourteenth  Amendment.  The  States  were,  and 
are  now,  the  depositories  of  the  rights  of  the  individual 

"Ibid.,  pp.  572-74- 


Congressional  Interpretation   of  Amendment.      249 

against  encroachment."  He  had  no  objection,  he  declared, 
to  a  law  which  would  protect  a  person  against  "  any  laws 
that  deprive  him  of  life,  liberty,  or  property,  except  by  the 
judgment  of  his  peers  or  the  law  of  the  land."  ''^. 

The  bill  passed  the  Senate,  with  amendments,  on  April 
14,  1 87 1,  by  a  vote  of  forty-five  to  nineteen,^"  Trumbull  and 
Schurz  voting  with  the  Democrats.  The  final  vote  in  the 
House,  April  19,  was  ninety-three  to  seventy-four,  with 
sixty-three  absentees,^^  while  in  the  Senate  it  was  thirty- 
six  to  thirteen  with  twenty-one  absentees.*^  — ._  ^     ,--^ 

The  action  of  the  special  session  of  the  Forty-second  Con- 
gress on  the  above  measure  is  very  important  as  to  the 
interpretation  of  the  Fourteenth  Amendment  by  the  legis- 
lative department,  and  special  weight  must  be  given  to  the 
declarations  of  those  who  were  members  of  Congress  when 
that  Amendment  was  proposed.  Mr.  Garfield's  statement 
that  the  interpretation  put  upon  that  Amendment  by  Con- 
gress would  become  historical  and  of  great  importance  in 
determining  its  future  interpretation  and  value  to  the  coun- 
try has  not  been  accepted  by  the  Courts,  but  he  was  correct 
so  far  as  the  historical  and  political  student  is  concerned, 
for  the  debates  on  this  bill  furnish  the  best  evidence  and 
material,  except  the  debates  on  the  Amendment  itself,  as  to 
what  was  really  intended  by  the  Amendment.  While  this 
bill  did  not  go  to  the  extent  to  which  Mr.  Sumner  and 
others  would  have  liked,  nevertheless  it  involved  the  impor- 
tant and  fundamental  fact  that  Congress  thought  and  de- 
clared, both  by  the  debates  and  by  the  bill  itself,  that  it  was 
given  affirmative  power  of  legislation  by  the  Fourteenth 
Amendment.  Without  this  principle,  the  later  Civil  Rights 
Bill  would  never  have  been  passed,  and  although  the  latter 
went  further  in  declaring  some  of  the  specific  rights  and 
immunities,  the  principle  was  the  same,  and  so  far  as  con- 
stitutional power  is  concerned,  there  was  no  difference. 

This  was  the  status  of  affairs  when  Congress  assembled 

™  Ibid.,  pp.  =^76-79. 
*"  Ibid.,  p.  709. 
"  Ibid.,  p.  808. 
*»  Ibid.,  p.  831. 


250       Adoption   of  the  Fourteenth  Amendment. 

for  its  regular  session  in  December,  1871.  Mr.  Sumner 
had  been  waiting  for  an  opportunity  to  get  his  Civil  Rights 
Bill  before  the  Senate,  and  when  the  Amnesty  Bill,  which 
passed  the  House,  was  before  the  Senate,  he  moved  it  as 
an  amendment  to  that  bill  December  20,  1871.  This  was 
the  same  bill  which  had  been  adversely  reported  in  1870  and 
1 87 1.  He  maintained  that  hotels,  public  conveyances  and 
schools  were  legal  institutions,  and  should  be  opened 
equally  to  all.  The  first  section  of  his  amendment  to  the 
Amnesty  Bill  provided  that  all,  without  distinction  of  race, 
color,  or  previous  condition  of  servitude,  should  be  entitled 
to  an  equal  and  impartial  enjoyment  of  any  accommodation 
or  privilege  furnished  by  common  carriers,  innkeepers, 
owners,  managers,  or  lessees  of  theaters  or  the  places  of 
public  amusement,  public  school  officials  (the  schools  being 
either  supported  or  authorized  by  law),  trustees  and  officers 
of  churches,  cemetery  associations,  and  benevolent  institu- 
tions, incorporated  by  national  or  state  authority.  The 
next  section  provided  penalties  for  the  violation  of  the 
above  section,  the  one  aggrieved  to  receive  $500,  and  the 
one  offending  also  to  be  subject  to  a  fine  of  not  less  than 
$500  nor  more  than  $1,000,  and  imprisoned  not  less  than 
thirty  days  nor  more  than  one  year.  The  third  section 
made  sections  three,  four,  five,  seven  and  ten,  of  the  Civil 
Rights  Bill  of  April  9,  1866,  a  part  of  this  bill.  The  fourth 
section  provided  that  no  one  should  be  disqualified  from 
jury  service  in  any  court  by  reason  of  race,  color,  or  pre- 
vious condition  of  servitude.  Any  official  who  should  ex- 
clude or  fail  to  summon  any  person  for  that  reason  was 
made  subject  to  a  fine  of  not  less  than  $1,000  nor  more  than 
$5,000.  The  bill  also  provided  that  every  law,  statute, 
regulation,  or  custom  which  was  inconsistent  with  it  or 
which  discriminated  in  any  way  by  the  use  of  the  word 
"white,"  was  thereby  repealed  and  annulled.*' 

Speaking  of  this  amendment  of  Mr.  Sumner's  the  next 
day,  Mr.  Sawyer,  one  of  the  Senators  from  South  Carolina, 
stated  that  as  long  as  the  Constitution  remained  as  it  then 

"  Cong.  Record,  42d  Cong.,  2d  Sess.,  p.  244. 


[ 


Congressional  Interpretation  of  Amendment.      251 

was,  every  citizen  was  entitled  to  the  same  rights  and  privi- 
leges as  every  other  citizen.  He  did  not  approve,  however, 
of  the  bill  being  tacked  on  to  the  Amnesty  Bill.^*  He  re- 
asserted his  position  when  the  measure  was  again  before 
the  Senate  after  the  holidays,  on  January  22,  1872,  stating 
that  Sumner's  bill  was  for  securing  more  thoroughly  to  the 
negroes  their  constitutional  rights.®'' 

Mr.  Thurman,  one  of  the  most  prominent  members  of 
the  minority  and  later  Vice-President  of  the  United  States, 
declared  that  the  bill  was  unconstitutional  from  the  fact 
that  th(e  States  had  neither  made  nor  enforced  any  law 
depriving  any  one  of  their  privileges,  and  that  Congress 
could  not  act  until  a  State  had  done  one  or  the  other.*^ 
Only  a  week  before  this  time,  January  15,  1872,  Mr. 
Sumner  had  stated  that  this  bill  was  on  the  same  footing 
as  the  Civil  Rights  Bill,  being  but  the  complement  of  that 
bill.  Without  this  complementary  bill,  the  former  was  im- 
perfect, he  declared.®^ 

Mr.  Morton,  in  reply  to  his  colleague,  Mr.  Thurman,  took 
the  position  that  the  bill  was  constitutional.  He  pointed 
out,  furthermore,  that  Mr.  Thurman  had  not  denied  that 
the  privileges  enumerated  in  the  bill  belonged  to  citizens  of 
the  United  States,  but  only  that  Congress  was  powerless  to 
interfere  unless  a  State  had  attempted  by  legislation,  or  by 
the  enforcement  of  some  principle  of  the  common  law,  to 
deny  to  some  one  the  exercise  and  enjoyment  of  those  privi- 
leges. In  reply  to  this,  Mr.  Thurman  contended  that  the 
Federal  Government  could  not  interfere  at  all  until  the  de- 
nial or  abridgment  of  the  privilege  had  taken  place.  He  said, 
however,  that  Congress  might  pass  a  law  in  anticipation  of 
such  denial  or  abridgment,  but  that  it  would  remain  wholly 
suspended  in  its  operation  until  the  case  provided  for  in 
the  Constitution  had  happened.  Mr.  Morton  said  that  by 
the  tacit  admission  that  the  privileges  stated  in  the  bill  were 
privileges  of  citizens  of  the  United  States  as  such,   Mr. 

"Ibid.,  p.  273. 

« Ibid.,  p.  488. 

"  Ibid.,  p.  496. 

"  Ibid.,  p.  383. 


252        Adoption   of   the   Fourteenth  Amendment. 

Thurman  had  given  up  his  whole  argument.  Continuing  his 
argument  he  added :  "  If  the  Constitution  of  the  United 
States  confers  a  right,  the  enforcement  or  protection  of 
that  right  belongs  to  the  Government  of  the  United  States. 
Will  that  position  be  denied?  The  Senator  (Mr.  Thurman) 
will  not  deny  that  wherever  there  is  a  right,  a  privilege,  or 
an  immunity  that  flows  from  the  Constitution  of  the  United 
States,  it  is  within  the  province  of  the  Government  of  the 
United  States  to  protect  the  enjoyment  of  that  right.  If  the 
things  intended  to  be  secured  by  this  bill  flow  from  United 
States  citizenship,  if  a  man  has  them  because  he  is  a  citizen 
of  the  United  States,  from  that  fact  and  from  that  principle 
of  law,  then  it  follows  that  the  protection  of  those  privileges 
belongs  to  the  Government  of  the  United  States.  The  con- 
clusion cannot  be  resisted  for  a  moment."  Mr.  Morton 
furthermore  said  that  Mr.  Thurman  seemed  to  be  imbued 
with  the  idea  that  the  Fourteenth  Amendment  had  given  new 
privileges  and  immunities  to  citizens  of  the  United  States, 
which  was  not  the  case,  for  it  merely  declared  who  should 
be  citizens,  and  that  no  State  should  abridge  or  deny  the 
privileges  or  immunities  of  citizens  which  had  existed  be- 
fore. Mr,  Thurman  thought  that  the  proper  way  was  for 
the  case  to  be  brought  before  the  Courts  when  any  one 
claimed  that  he  was  deprived  of  some  privilege  or  immunity, 
since  the  Courts  were  empowered  to  declare  null  and  void 
any  law  or  act  which  was  in  violation  of  the  Constitution. 
If  Congress  had  authority  to  legislate  on  any  subject  that 
affected  the  privileges,  immunities,  life,  liberty,  or  property 
of  citizens,  continued  Mr.  Thurman,  then  all  local  self-gov- 
ernment was  at  an  end,  since  the  Federal  Government  would 
swallow  up  the  state  governments,  and  added :  "  I  protest 
against  any  such  interpretation."^^ 
y^  Mr.  Lot  M.  Morrill,  of  Maine,  who,  it  will  be  remembered, 
was  charged  with  violating  his  pledge  at  the  time  Mr.  Stock- 
ton, of  New  Jersey,  was  unseated  in  order  to  secure  the 
passage  of  the  Civil  Rights  Bill  over  the  President's  veto, 
opposed  the  bill  on  the  ground  that  the  Federal  Government 

"Ibid.,  pp.  524-27. 


Congressional  Interpretation   of  Amendment.      253 

had  no  right  to  take  cognizance  of  matters  of  education, 
worship,  amusement,  recreation,  etc.,  which  entered  so  essen- 
tially into  the  private  life  of  the  peoplejy  "  I  maintain,"  he 
declared,  "  that  the  bill  of  the  Senator  from  Massachusetts 
clearly  and  manifestly  undertakes  to  regulate  these  personal, 
social,  religious,  domiciliary  rights  of  the  people  of  the 
States;  that  it  is  without  warrant  in  the  Constitution." 
These  matters  belonged  exclusively  to  the  States  was  his 
opinion.*®  On  the  same  day,  but  after  Mr.  Sumner  had 
replied  to  his  speech,  Mr.  Morrill  said  that  the  Judiciary 
Committee  had  reported  the  bill  adversely  on  constitutional 
grounds,  but  modified  this  when  Mr.  Edmunds  stated  that 
his  understanding  was  that  it  was  because  it  was  deemed 
unnecessary.  No  written  report  was  made,  and  Senators 
may  have  voted  against  it,  for  different  reasons  according 
to  the  statement  of  Mr.  Edmunds.^" 

Mr.  Carpenter,  of  Wisconsin,  one  of  the  ablest  men 
in  the  Senate,  declared  that  he  doubted  whether  Congress 
could  legislate  as  to  churches,  being  prohibited  from  doing 
so  by  the  First  Amendment.  He  was  also  of  the  opinion 
that  Congress  could  not  legislate  as  to  jurors  in  state  courts, 
but  that  the  Federal  Courts  could  not  refuse  to  receive  negro 
jurors  on  account  of  race  or  color.  The  significant  part  of 
his  speech,  however,  is  the  following  declaration :  "  There 
is  no  provision  of  the  Constitution,  that  I  am  aware  of, 
except  in  the  Fourteenth  Amendment,  which  prevents  a 
State  from  passing  a  law  that  no  colored  citizen  shall  be  ad- 
mitted to  practice  law,  or  be  allowed  to  preach  the  gospel,  or 
to  teach  in  the  schools,  or  to  embark  in  any  other  honorable 
vocation  or  pursuit  of  life.  Up  to  the  adoption  of  that 
Amendment,  it  was  in  the  power  of  the  States,  subject  only 
to  their  own  Constitutions  to  say  what  persons  should  par- 
ticipate in  the  various  pursuits  of  life."  He  also  took  the 
position  that  negroes  could  not  legally  be  excluded  from 
the  common  schools  supported  by  public  taxation,  and  ap- 

°*  Ibid.,  Appendix,  pp.  1-5. 
"  Ibid.,  p.  731- 


254       Adoption   of   the  Fourteenth  Amendment. 

proved  the  main  purposes  of  Sumner's  bill  with  the  excep- 
tions noted  above  .®^ 

Mr.  Davis,  of  Kentucky,  one  of  the  bitterest  opponents 
of  the.  Radicals,  and  himself  an  extremist,  admitted  Mr. 
Carpenter's  statement  as  to  permitting  negroes  to  practice 
law,  etc.,  but  held  that  the  proper  remedy  was  to  be  found 
in  the  Courts.  He  held  of  course  that  Sumner's  bill  was 
unconstitutional.'^ 

Mr.  Norwood,  of  Georgia,  on  February  5,  1872,  declared 
that  section  five  of  the  bill  would  repeal  all  laws  of  the 
States  which  discriminated  as  between  the  races,  and  that 
Sumner,  who  had  been  professor  of  law  and  in  the  Senate 
for  twenty  years,  knew  the  force  and  effect  of  the  words  in 
that  section.  As  to  the  effect  of  the  bill,  he  said:  "It  is 
nothing  more  nor  less  than  this :  that  in  any  and  every  State 
where  there  is  a  statute  or  a  law,  whether  it  be  statute  or  not, 
which  inhibits  marriages  between  whites  and  blacks,  this  sec- 
tion strikes  that  statute  or  that  law  to  the  ground.  Every 
such  statute  on  those  books  [of  the  State] ,  from  the  time  this 
bill,  if  constitutional,  is  passed,  will  cease  to  be  in  force ;  it 
will  be  absolutely  void  by  reason  of  the  predominance  of  acts 
of  Congress  over  any  state  legislation.  Can  there  be  any 
doubt  of  this?  I  have  read  this  clause  carefully;  I  have 
called  the  attention  of  several  Senators  to  this  provision,  and 
I  have  met  with  no  one  yet  who  does  not  agree  with  me  that 
the  effect  of  passing  this  law  would  abolish  every  state  law 
which  inhibits  marriage  between  whites  and  blacks."  ^^  Mr. 
Norwood,  however,  did  not  think  the  bill  constitutional,  but 
raised  this  objection  to  it  anyway.  Mr.  Sumner  at  no  time 
contradicted  the  statement  made  by  Mr.  Norwood  as  to  the 
effect  of  his  bill  on  the  marriage  laws  of  the  States. 

Mr.  Mortop,  of  Indiana,  thought  that  section  four  of  Mr. 
Sumner's  bill,  which  had  been  omitted  in  the  substitute 
offered  by  Mr.  Carpenter,  was  a  proper  subject  for  legislation 
liy  Congress.     He  admitted  that  the  States  had  the  right  to 

•^Ibid.,  pp.  760-63. 
"  Ibid.,  p.  764. 
"  Ibid.,  p.  819. 


Congressional  Interpretation  of  Amendment.     255 

fix  the  general  qualifications  for  jurors,  but  denied  that  they 
could,  under  the  Fourteenth  Amendment,  exclude  any  one 
from  the  jury  on  account  of  race  or  color.  He  placed  the 
right  to  be  a  juror  on  the  same  ground  as  that  to  be  a  wit- 
ness. Mr.  Carpenter  regarded  the  right  to  be  a  juror  as 
a  political  right,  and  not  an  inherent  privilege  like  testify- 
ing, for  if  it  were,  then  women  could  be  jurors  since  they 
were  allowed  to  be  witnesses.  He  stated,  however,  that  he 
would  vote  for  the  section  although  believing  it  unconsti- 
tutional.''* 

Mr.  Thurman,  to  whom  reference  has  already  been  made, 
practically  said,  February  6,  1872,  that  the  privileges  and 
immunities  of  which  citizens  of  the  United  States  could  not 
be  deprived  were  to  be  found  in  the  Constitution.  He  then 
enumerated  those  in  the  original  Constitution,  such  as  habeas 
corpus,  bill  of  attainder,  etc.,  after  which  he  quoted  the  first 
eight  Amendments  as  recognizing  the  other  rights  and  privi- 
leges which  belonged  to  citizens.  He  declared  that  the 
power  of  the  Government  was  commensurate  with  the 
rights  of  the  citizens  of  the  United  States,  and  that  the  Gov- 
ernment had  the  power  to  protect  those  rights  in  the  mode 
provided  by  the  Constitution,  namely,  by  the  judicial  power. 
He  said  there  was  no  provision  in  the  Constitution  which 
gave  any  one  a  right  to  sit  on  a  jury  in  a  state  court,  nor 
was  there  any  power  there  to  compel  all  children  to  attend 
the  same  school,  since  there  could  be  separate  schools  for  the 
races  or  sexes.®"*  The  significant  thing  in  his  speech  was, 
what  was  the  virtual  statement  that  the  first  eight  Amend- 
ments were  made  applicable  to  the  States  by  the  Fourteenth 
Amendment.  This  was  the  first  direct,  or  what  may  be  con- 
sidered a  direct,  statement  of  that  belief  by  one  of  the 
minority.  Mr.  Sherman,  who  usually  took  a  very  active  part 
and  whose  influence  was  great,  thought  that  the  rights 
enumerated  in  Mr.  Sumner's  Bill  were  to  be  found  in  the 
common  law  and  in  the  Constitution.  He  took  issue  with 
Mr.  Morrill,  who  had  declared  that  the  Fourteenth  Amend- 

**Ibid.,  pp.  820-26. 

"Ibid.,  Appendix,  pp.  25-7. 


256       Adoption   of   the   Fourteenth  Amendment. 

ment  had  not  enlarged  the  scope  of  the  old  Constitution. 
Even  the  first  Amendments  to  the  Constitution  did  not  con- 
tain all  the  rights  of  citizens,  declared  Mr.  Sherman,  for  the 
common  law  was  the  great  reservoir  of  those  rights.  All 
those  rights,  found  in  the  Constitution  and  in  the  common 
law,  were  guaranteed  by  the  Fourteenth  Amendment,  was  his 
contention.  To  prevent  any  one  from  going  to  common 
schools,  from  visiting  an  inn,  from  enjoying  the  rights  of  a 
common  carrier,  etc.,  was  in  his  opinion,  an  abridgment  of  his 
rights  as  secured  by  section  one  of  Article  Fourteen. 

He  answered  the  statement  of  Mr.  Morrill  that  the  Four 
teenth  Amendment  was  but  a  reiteration  of  section  two  o 
Article  Four  of  the  Constitution  by  saying  that  the  old  pro- 
vision could  not  be  enforced,  while  section  five  of  Article, 
Fourteen  expressly  gave  the  power  to  enforce  it.  Mr.  Sher- 
man also  held  that  the  right  of  trial  by  jury  was  a  right 
which  could  not  be  taken  away,  since  the  adoption  of  that 
Amendment.®®  In  other  words,  he  thought  that  the  first 
eight  Amendments  were  made  binding  on  the  States  by  the 
adoption  of  the  Fourteenth  Amendment.  It  may  be  re- 
marked here  that  Mr.  Sherman  had  taken  an  active  part 
when  that  Amendment  was  before  Congress. 
.  '  Mr.  Morton  stated,  shortly  after  Mr.  Thurman's  speech, 
that  "  protection,"  as  used  in  the  last  clause  of  the  first  sec- 
tion of  Article  Fourteen,  meant  or  was  equivalent  to  the 
equal  "  benefit  of  the  law,"  and  that  it  was  intended  to  pro- 
mote equality  in  the  States  and  referred  to  the  laws  of  the 
States.  The  object  of  the  Amendment  was,  he  declared, 
"  to  strike  at  all  class  legislation — to  provide  that  laws  must 
be  general  in  their  effects.""^ 

"  Ibid.,  pp.  843-45.  Mr.  Carpenter  reminded  Mr.  Sherman  that  the 
right  to  trial  by  jury  as  g^uaranteed  by  the  Fifth  Amendment  ap- 
plied only  to  Federal  Courts,  but  Mr.  Sherman  replied :  "  Yes,  sir ; 
the  right  to  be  tried  by  an  impartial  jury  is  one  of  the  privileges 
included  in  the  Fourteenth  Amendment;  and  no  State  can  deprive 
any  one  by  a  state  law  of  this  impartial  trial  by  jury.  .  .  .  What- 
ever distinctions  were  drawn  before  the  adoption  of  the  recent 
Amendments,  here  is  this  last  voice  of  the  public  will  which  we  are 
bound  to  obey,  which  declares  that  every  man  shall  have  the  pro- 
tection of  this  immunity  and  privilege." 

"  Ibid.,  p.  847. 


Congressional  Interpretation  of  Amendment.      257 

Mr.  Ferry,  of  Connecticut,  opposed  the  bill  because  he 
thought  it  would  be  fatal  to  the  Amnesty  Bill,  to  which  it 
had  been  offered  as  an  amendment,  and  which  he  was  very 
anxious  to  have  passed.  He  seemed  to  doubt  its  constitu- 
tionality, however,  and  was  opposed  to  it  for  other  reasons, 
for,  in  his  judgment,  it  struck  "  down  the  very  bulwarks  of 
civil  rights  throughout  the  whole  country.  It  t  kes  away 
the  foundation  principle  upon  which  our  Federal  system  rests 
by  striking  at  the  principle  of  local  self-government  the  most 
vital  blow  that  it  has  received  since  the  foundation  of  the 
Government."®^ 

Mr.  Norwood,  of  Georgia,  called  Mr.  Sumner's  attention 
to  the  effect  of  his  bill  on  laws  which  inhibited  the  marriage 
of  persons  of  different  races.  Mr.  Sumner  admitted  that  it 
would  annul  those  laws  and  all  laws  which  discriminated  on 
account  of  color,  such  laws  being  offshoots  of  slavery,  and 
not  proper  to  remain.®* 

Mr.  Ferry  reiterated  his  objections  to  the  bill,  February  8, 
declaring  that  it  was  "  fatal  to  the  rights  of  the  people  of  the 
States  as  citizens  of  the  States,"  and  that  it  tended  "  directly 
to  consolidate  all  authority  in  this  nation  into  one  imperial 
government."  Upon  the  theory  that  it  was  necessary  to  give 
all  citizens  the  equal  protection  of  the  laws  and  to  secure 
them  in  the  right  of  life,  liberty  and  property,  he  declared 
that  Congress  could  "  go  into  every  city,  town,  borough  and 
hamlet  in  the  United  States  and  enact  ordinary  police  laws, 
and  put  a  Federal  officer  to  keep  guard  over  the  streets."^"** 

Mr.  Edmunds,  of  Vermont,  who  had  entered  the  Senate  as 
the  successor  of  Mr.  Foote,  in  time  to  hear  the  debate  on  the 
Fourteenth  Amendment,  and  to  vote  for  it,  took  the  position 
that  the  Amendment  had  been  adopted  for  a  purpose,  and 
that  this  purpose  was  to  broaden  in  some  way  the  national 
rights  of  citizens.     He  asked  those  who  opposed  the  inter- 

•*  Ibid.,  p.  870. 
*  Ibid.,  p.  872. 
"^  Ibid.,  pp.  892-93. 

17 


258        Adoption   of   the  Fourteenth  Amendment. 

pretation  of  the  Amendment  as  given  by  advocates  of  the  bill 
to  tell  why  it  had  been  adopted."^ 

The  vote  on  Mr.  Sumner's  bill,  as  an  amendment  to  the 
Amnesty  Bill,  was  twenty-eight  to  twenty-eight,  February  9. 
The  Vice-President  voted  for  it,  thus  attaching  the  amend- 
ment to  tlie  bill.  The  Amnesty  Bill  as  thus  amended  did  not 
secure  the  requisite  two  thirds,  the  vote  being  thirty-three  to  / 
nineteen.^"^ 

When  another  Amnesty  Bill  was  before  the  Senate  in  the 
May  following,  Mr.  Sumner  came  forward  with  his  bill  as  an 
amendment.  ;  Mr.  Sherman,  speaking  on  the  subject,  May  8, 
1872,  stated  that  the  amendment  offered  by  Mr.  Sumner  did 
not  assert  or  affirm  a  right  which  the  negroes  did  not  already 
possess,  but  that  it  merely  gave  additional  remedy.  The 
rights  were  given  by  the  Constitution,  and  especially  by  the 
Fourteenth  Amendment,  but  were  denied  in  many  localities, 

""*  Ibid.,  pp.  899-900.  Among  other  things  he  said :  "  Why,  sir,  if 
the  Fourteenth  Amendment  to  the  Constitution  was  adopted  for  a 
purpose,  and  our  friends  on  the  other  side  have  always  asserted  that 
it  was,  and  they  thought  a  very  improper  purpose,  one  which  would 
almost,  if  not  quite,  justify  a  resort  to  arms  to  repel  it  certainly 
contained  in  it  something  that  made  an  advance  upon  the  old 
Constitution  as  it  respects  the  equality  of  the  rights  of  citizens. 
It  was  not  mere  waste-paper ;  it  was  not  even  '  the  sounding  and 
glittering  generality'  that  the  Declaration  of  Independence  is  said 
to  be;  but  it  was  a  charter  of  rights,  which  was  to  secure 
to  citizens  that  equality  of  protection  under  the  law,  that  equality 
of  right  and  privilege  which  belongs  to  citizenship  in  its  truest  and 
highest  sense."  After  referring  to  the  Civil  Rights  Bill  of  1866, 
he  asked:  "What  have  we  done  since?  Will  any  one  rise  in  his 
place  and  say  that  in  the  place  of  that,  we  have  taken  the  pains  by 
a  solemn  act  of  three  fourths  of  the  States  to  adopt  the  Fourteenth 
Amendment  without  any  reason  for  it,  without  any  occasion  for 
it,  without  its  being  in  fact  as  it  was  intentionally  designed,  calcu- 
lated and  effective  to  accomplish  a  change  in  the  National  Consti- 
tution, and  to  broaden  in  some  degree  and  in  some  way  the  national 
rights  of  citizens,  and  to  protect  to  some  extent  and  under  some 
power  the  rights  which  citizens  ought  to  be  protected  in?  No  man 
can  deny  it.  What,  then,  is  it  that  we  have  done?  If  we  have  not 
by  the  Fourteenth  Amendment  accomplished  something  in  declaring 
that  the  privileges  and  immunities  of  citizens  shall  be  sacred  every- 
where, and  the  national  power  shall  protect  them,  what  have  we 
done?  If  it  is  not  a  privilege  and  immunity  of  a  citizen,  being 
otherwise  equal  and  otherwise  qualified,  to  stand  on  an  equality 
irrespective  of  color,  what  is  a  privilege  and  immunity  of  citizen- 
ship upon  which  you  can  stand?" 

"*  Ibid.,  pp.  919-29. 


Congressional  Interpretation  of  Amendment.      259 

he  declared.  He  referred  to  the  decision  of  the  Supreme 
■'Court  of  Ohio,  which  had  been  made  a  day  or  two  before  in 
which  the  law  of  Ohio  providing  for  separate  schools  was 
held  to  be  constitutional.  He  thought  the  Court  was  right, 
but  he  did  not  say  that  negroes  could  be  kept  out  of  the 
schools  for  the  whites,  since,  he  said,  separate  schools  might 
be  had  in  the  South  as  a  matter  of  convenience  and  assented 
to  by  both  races.^"^ 

Mr,  Boreman,  of  West  Virginia,  opposed  the  Amendment 
of  Mr.  Sumner  on  grounds  of  expediency,  and  not  because  it 
was  unconstitutional,  declaring  that  he  thought  it  inexpedient 
to  incorporate  such  propositions  into  the  Federal  law.^"* 

Mr.  Blair,  of  Missouri,  an  opponent  of  Mr.  Sumner's  en- 
tire bill  offered  an  amendment  to  permit  each  city,  county, 
or  State  to  decide,  at  an  election  to  be  held  for  that  purpose, 
whether  it  should  have  mixed  or  separate  schools.  This 
proposition  was  defeated  by  a  vote  of  thirty  to  twenty- 
three."" 

Mr.  Howe,  while  denying  the  contention  of  Mr.  Blair, 
that  the  Federal  Government  was  a  centralized  oligarchy, 
stated  that  legislative  power,  which  Congress  had  not  ex- 
ercised before,  had  been  conferred  upon  Congress  by  the 
last  three  Amendments,  and  that  one  of  them  (the  Four- 
teenth) gave  the  authority  to  pass  the  Sumner  or  Civil 
Rights  Bill."« 

Although  the  Civil  Rights  Bill  was  tacked  on  to  the 
Amnesty  Bill  by  the  casting  vote  of  the  President  of  the 
Senate,  we  have  already  noted  that  it  then  received  thirty- 
three  affirmative  to  nineteen  negative  votes,  clearly  demon- 
strating that  a  great  majority  thought  that  it  was  constitu- 
tional. Among  those  who  voted  for,  or  advocated  the  bill, 
were  the  following,  who  had  participated  in  the  submission 
of  the  Fourteenth  Amendment  by  Congress:  Messrs.  An- 
thony, Conkling,  Ferry  of  Michigan,  Morrill  of  Vermont, 

"^  Ibid.,  pp.  3192-93. 

"^  Ibid.,  p.  3195. 

"^  Ibid.,  pp.  3258-62. 

'"■  Ibid.,  p.  3259. 


26o        Adoption   of   the  Fourteenth  Amendment. 

Pomeroy,  Sherman,  Sumner,  Windom,  Wilson,  Edmunds, 
Howe,  Nye,  Sprague,  Stewart  and  Chandler.  It  is  to  be 
remembered,  however,  that  three  of  those  who  were  active 
in  the  passage  of  the  Amendment  opposed  the  Bill  of  Sum- 
ner, viz.,  Messrs.  Trumbull,  Carpenter  and  Morrill,  though 
Mr,  Carpenter's  only  constitutional  objection  was  to  that 
part  of  the  bill  relating  to  the  church  and  jurors. 

Although  the  bill  was  not  considered  in  the  House,  there 
was  introduced  a  resolution  by  Mr.  Hereford,  of  West 
Virginia,  March  ii,  1872,  to  test  the  sentiment  of  the 
House.  The  resolution  declared  that  it  would  be  contrary 
to  the  Constitution  and  a  usurpation  of  power  for  Congress 
to  force  mixed  schools  upon  the  States  or  to  pass  any  law 
interfering  with  churches,  public  carriers,  or  innkeepers, 
such  subjects  of  legislation  belonging  exclusively  to  the 
States.  The  resolution  was  defeated  by  a  vote  of  sixty-one 
to  eighty-four.  Among  those  voting  against  the  resolution 
were  Messrs.  Bingham,  Dawes,  Garfield,  Hoar  and 
Poland.^"^ 

Although  the  legislation  attempted  by  the  Forty-second 
Congress,  and  the  debates  thereon,  furnish  very  important 
and  valuable  evidence  as  to  the  construction  put  upon  the 
Fourteenth  Amendment  by  Congress,  and  especially  by 
those  members  who  had  taken  part  in  its  enactment,  that 
of  the  Forty-third  Congress  is  equally,  if  not  more, 
important. 

Soon  after  the  assembling  of  the  Forty-third  Congress, 
Mr.  Benjamin  Butler,  of  Massachusetts,  reported  from  the 
House  Judiciary  Committee,  of  which  he  was  chairman, 
the  so-called  Civil  Rights  Bill  known  as  H.  R.  No.  796. 
/  This  bill  provided  that  no  person  or  corporation  should 
make  any  distinction  as  to  the  admission  or  accommodation 
of  any  citizen  of  the  United  States  on  account  of  race,  color, 
or  previous  condition  of  servitude,  to  any  public  inn,  place 
of  amusement,  or  entertainment  for  which  a  license  was 
required,  stage-coach,  railroad,  or  other  public  carrier, 
cemetery,  benevolent  institution,  or  public  school  wholly  or 

'"  Ibid.,  p.  1582.  ~ 


Congressional  Interpretation  of  Amendmefit.      261 

partly  supported  by  taxation  or  by  endowment  for  public 
use.^°®  Speaking  of  this  bill  the  next  day,  December  19, 
1873,  Mr.  Butler  declared  that  it  gave  no  rights  which  did 
not  already  exist,  and  that  the  laws  of  the  States  which 
attempted  to  deprive  any  one  of  these  rights  were  uncon- 
■__stitutional.^°» 

Mr.  Beck,  of  Kentucky,  on  the  same  day  quoted  the 
first  ten  Amendments  in  full,  and  added :  "  These  are  the 
rights  of  a  citizen  of  the  United  States  which  the  Four- 
teenth Amendment  declares  no  State  shall  abridge.  The 
Supreme  Court  recognizes  them,  and  goes  on  to  enumerate 
a  few  others  of  the  same  general  character  in  the  case  I 
quoted  from.  They  are  now  secured  to  white  and  black 
alike ;  they  were  not,  under  the  Dred  Scott  decision,  till 
the  Fourteenth  Amendment  became  a  part  of  the  Consti- 
tution." ^^"  This  is  a  clear  statement  as  to  the  effect  of 
the  Fourteenth  Amendment. 

Mr.  Roger  Q.  Mills,  of  Texas,  who  later  represented  his 
State  in  the  Senate,  practically  agreed  with  Mr.  Beck,  of 
Kentucky,  for  in  a  speech,  January  5,  1874,  he  took  the 
position  that  the  Fourteenth  Amendment  protected  the  citi- 
zens only  in  the  rights  and  privileges  which  were  conferred 
by  the  Constitution.  These  rights,  he  declared,  were  funda- 
mental, fixed  and  absolute,  among  which  were  those  found 
in  the  first  Amendments  to  the  Constitution.  Those  rights 
and  privileges  which  were  conferrred  by  the  State,  and 
/  without  which  they  would  not  exist,  were  not  fundamental, 
/  he  declared,  and  were  not,  therefore,  included  among  the 
rights  guaranteed  by  the  Fourteenth  Amendment.  The 
right  to  go  to  school  was  not  fundamental,  for  schools 
could  be  closed  entirely  without  abridging  the  rights  of 
any  citizen  of  the  United  States,  which  could  not  be  done 
if  it  were  a  right  conferred  by  the  Constitution.^^^ 

^^  Forty-third  Congress,  ist  Sess.,  p.  318. 

^"  Ibid.,  p.  340. 

"» Ibid.,  p.  343. 

"*  Ibid.,  pp.  384-85-  It  seems  worth  while  to  quote  a  part  of  Mr. 
Mills'  speech.  It  is  as  follows:  "From  the  authority  of  adjudged 
cases  it  is  clear  that  the  privileges  and  immunities  mentioned  in 


262        Adoption   of   the  Fourteenth  Amendment. 

The  following  day  Mr.  Lawrence,  of  Ohio,  also  made  a 
very  significant  speech  on  the  bill.  After  stating  that  it 
was  supplemental  to  the  Civil  Rights  Bill  of  1866,  he  quoted 
the  first  section  of  the  Fourteenth  Amendment  with  the 
following  comment:  "The  object  of  this  provision  is  to 
make  all  men  equal  before  the  law.  If  a  State  permits 
inequality  in  rights  to  be  created  or  meted  out  by  citizens 
or  corporations  enjoying  its  protection,  it  denies  the  equal 
protection  of  the  laws."  His  interpretation  of  the  "  equal 
protection  "  which  was  to  be  secured  to  every  citizen  was 
thus  contrary  to  the  restricted  meaning  which  was  given 
to  it  by  those  who  opposed  Federal  action  as  well  as  to  the 
construction  which  was  later  put  upon  it  by  the  Supreme 
Court  of  the  United  States.  His  position  cannot  be  better 
stated  than  by  his  own  words  when  he  declared :  "  What 
the  State  permits  by  its  sanction,  having  the  power  to  pro- 
hibit, it  does  in  effect  itself."  Whatever  objection  may  be 
made  to  the  legal  soundness  of  this  dictum  or  to  its  expe- 
diency, it  cannot  be  denied  that  it  is  a  cogent,  forceful,  and 
reasonable  argument.  He  contended,  and  with  consider- 
able show  of  reason,  it  would  seem,  that  the  word  "  deny  " 
included  omission  as  well  as  commission.  The  State  was 
just  as  reprehensible,  in  his  opinion,  in  failing  to  enforce 

the  Fourteenth  Amendment  are  only  such  as  are  conferred  by  the 
Constitution  itself  as  the  supreme  law  over  all;  that  they  are  funda- 
mental, such  as  lie  beneath  the  very  foundation  of  Government; 
that  they  are  fixed  and  absolute;  and  any  rights,  privileges  and 
immunities  conferred  by  the  State,  and  without  whose  grant  they 
could  not  be  enjoyed,  are  not  fundamental,  and  upon  which  its 
structure  is  built,  neither  are  they  uniform,  but  their  differences 
are  as  great  as  the  numbers  of  the  States  and  as  changeable  as 
the  laws  of  the  State.  The  privileges  of  the  Constitution  are 
fixed  as  the  Constitution,  which  is  organic  law  established  to  secure 
fundamental  principles.  These  privileges  are,  among  others,  the 
right  to  the  enjoyment  of  life,  liberty,  property,  and  the  pursuit 
of  happiness;  the  right  of  peaceable  assemblage  for  all  purposes 
not  criminal;  freedom  of  speech,  of  the  press,  and  of  religion;  im- 
munity of  one's  person,  home,  and  papers  against  unlawful  seizure 
and  search;  trial  by  jury  when  held  to  answer  for  crime;  to  be 
informed  of  the  accusation,  and  confronted  with  the  accusers ;  im- 
munity from  excessive  bail,  excessive  fines,  and  cruel  and  un- 
usual punishments,  and  many  others,  all  of  which  are  recognized 
and  guaranteed  in  the  Constitution." 


Congressional  Interpretation  of  Amendment.      263 

or  secure  equal  rights,  as  in  itself  denying  those  rights,  for 
the  failure  to  secure  was  in  itself  a  denial. 

He  referred  to  the  debates  on  the  Civil  Rights  Bill  of 
1866  with  frequent  quotations,  to  show  the  'doubt  felt  as 
to  the  constitutionality  of  that  bill,  both  among  Democrats 
and  Republicans,  and  the  evident  purpose  of  the  Four- 
teenth Amendment  to  confer  power  upon  Congress  to  pass 
such  a  bill.  He  also  quoted  from  the  speeches  made  on 
that  Amendment,  among  them  being  Messrs.  Stevens, 
Finck,  Broomall,  Shanklin,  Raymond,  Bingham,  Poland, 
Hendricks  and  others.^^^  After  quoting  from  the  speeches 
made  in  Congress  at  the  time  the  Amendment  was  under 
consideration,  Mr.  Lawrence  said :  "  The  debates  show  that 
these  distinct  assertions  of  the  powers  to  be  conferred  in 
Congress  by  the  Fourteenth  Amendment  were  not  contro- 
verted. No  one  ventured  to  deny  them.  The  debates  on 
the  Thirteenth  and  Fifteenth  Amendments  are  explicit  in 
corroborating  this  purpose."  He  also  held  that  it  was  in- 
credible to  think  that  Congress,  in  submitting  the  Amend- 
ment, or  the  people  in  adopting  it,  did  not  clearly  and  un- 
mistakably intend  to  confer  upon  Congress  the  power  now 
claimed  and  to  provide  an  effective  remedy  for  the  evils 
(or  supposed  evils)  which  had  been  so  fully  and  frequently 
denounced.  The  fact  that  Congress  had,  on  April  20, 
1871,  reenacted  the  Civil  Rights  Bill  of  1866,  had  passed 
the  "Enforcement  Bills"  of  1870  and  1871,  and  the  Ku 
Klux  Act  of  1871,  many  of  those  voting  for  some  or  all 
of  these  bills  having  voted  to  submit  the  Amendment,  was 
cited.  All  this  contemporaneous  construction  of  the 
Amendment,  he  argued,  carried  more  than  persuasive  force 
as  to  its  meaning.  He  also  contended  that  the  bills,  to 
which  reference  has  been  made,  proceeded  upon  the  idea 
that  if  a  State  omitted  or  neglected  to  secure  the  enforce- 
ment of  equal  rights,  it  denied  the  equal  protection  of  the 
law  as  used  in  the  Fourteenth  Amendment.^^^ 

On  the  same  day  Mr.  Herndon,  of  Texas,  in  speaking 

"*  See  chapter  II  above  for  a  consideration  of  these  speeches. 
"*Ibid.,  pp.  412-14, 


264        Adoption   of   the  Fourteenth  Amendment. 

of  those  rights  which  belong  to  citizens  of  the  United  States 
as  such,  enumerated  those  which  are  stated  in  the  original 
Constitution  and  in  the  first  Amendments  to  it,  and  said: 
"  All  of  these  and  others  not  enumerated  may  be  now  as- 
serted by  a  citizen  of  the  United  States,  and  be  secured  in 
them  by  the  whole  power  of  the  Government,  though  such 
person  be  not  a  citizen  of  any  State."  ^^*  Since  he  must 
have  been  familiar  with  the  decisions  of  the  Courts,  it  fol- 
lows that  he  was  of  the  opinion  that  one  of  the  effects  of 
the  Fourteenth  Amendment  had  been  to  make  the  Amend- 
ments binding  on  the  States.  Mr.  Atkins,  of  Tennessee, 
expressed  the  same  opinion  the  next  day.^^^ 
/"  No  action  in  regard  to  the  bill  was  taken  during  this  ses- 
sion of  Congress. 

As  an  illustration  of  what  the  negroes  thought  of  the 
bill,  Mr,  Read,  of  Kentucky,  on  May  29,  1874,  read  from 
the  resolutions  of  a  negro  meeting  in  Tennessee  approving 
it,  while  at  the  same  time  denouncing  the  laws  of  that  State 
which  made  it  a  criminal  offense  for  negroes  and  whites 
to  intermarry  and  pledging  themselves  to  raise  funds  to 
bring  the  case  of  a  negro  convicted  under  that  law  before 
the  Supreme  Court  of  the  United  States  to  vindicate  the 
rights  of  the  colored  citizens  of  Tennessee  to  the  civil 
rights  of  marriage  with  whomsoever  they  may  contract 
and  choose."  ^^* 

Mr.  Sumner  was  on  hand  when  the  Forty-third  Con- 
gress assembled  and  succeeded  in  presenting  the  first  bill, 
which  was  his  cherished  Civil  Rights  Bill  supplementary 
to  the  one  passed  in  1866.  This  was  December  i,  1873, 
and  on  the  next  day  he  moved  that  the  Senate  proceed  to 
its  consideration,  stating  that  it  was  so  well  known  that 
debate  would  not  be  necessary.^"  Objection  was  raised 
to  this,  and  the  bill  was  referred  to  the  Committee  on  the 
Judiciary.     The  bill  was  in  the  hands  of  the  Committee 


"*  Ibid.,  p.  420. 
"*  Ibid.,  p.  453. 
m J^il'  Appendix,  p.  343. 
Ibid.,  pp.  2  and  10. 


Congressional  Interpretation  of  Amendment.      265 

until  April  29,  1874,  when  Mr.  Frelinghuysen,  of  New 
Jersey,  reported  it  back  to  the  Senate.  He  asked  for  a 
calm,  impartial,  and  non-partisan  consideration  of  the  bill. 
In  reference  to  the  bill  itself,  he  declared  that  if  Congress 
did  not  have  the  power  to  pass  it,  the  people  had  perpe- 
trated a  blunder  amounting  to  a  grim  burlesque  over  which 
the  world  might  laugh,  were  it  not  so  serious  a  blunder. 
There  was  but  one  idea  in  the  bill,  he  asserted,  and  that 
was  the  "  equality  of  races  before  the  law.''  In  considering 
the  inquiry  whether  it  was  a  denial  of  equal  rights  to  have 
separate  schools,  Mr,  Frelinghuysen  cited  a  case  which  had 
been  decided  by  the  Court  of  Iowa.  That  question  was 
directly  considered  in  this  case  (24  Iowa  Reports,  p.  263), 
he  said,  and  the  Court  had  declared  that  the  school  direc- 
tors could  not  deny  a  child  admission  to  any  particular 
school  on  account  of  race  or  color,  nor  could  colored  chil- 
dren be  required  to  attend  separate  schools  provided  for 
them.  He  also  cited  the  case  which  had  been  decided  in 
Ohio  (21  Ohio  Reports,  p.  198)  in  which  an  adverse  de- 
cision had  been  given.  It  was  pointed  out  that  the  Consti- 
tutions and  laws  of  the  two  States  were  unlike,  thus  ac- 
counting for  dissimilar  decisions,  but  that  these  decisions 
afforded  no  precedent  for  the  construction  of  this  bill.  He 
based  the  authority  of  Congress  to  pass  the  bill  on  the  War 
Amendments,  but  primarily  and  specifically  on  the  Four- 
teenth. Reference  was  made  to  the  Slaughter  House 
Cases,  to  show  that  the  Supreme  Court  thought  the  object 
of  that  Amendment  was  to  prevent  the  curtailment  of  the 
rights  of  the  negroes.  Mr.  Frelinghuysen  admitted,  how- 
ever, that  it  was  not  one  of  the  privileges  of  citizens  of  the 
United  States  to  have  an  education,  visit  inns,  etc.,  but  that 
it  was  one  of  his  privileges  as  such  not  to  be  discriminated 
against  on  account  of  his  race  or  color  by  the  law  of  a 
State  relating  to  those  subjects.  He  said  he  did  not  know 
whether  a  citizen  had  the  right  to  be  a  juror,  but  that  he 
could  not  be  discriminated  against,  and  that  it  was  not 
equal  protection  of  the  law  to  exclude  a  class  as  such.^^* 

'"  Ibid.,  pp.  3451-55. 


266       Adoption   of  the  Fourteenth  Amendment. 

Mr.  Norwood,  of  Georgia,  followed  Mr.  Frelinghuysen 
with  a  very  able  speech  the  next  day.  He  enumerated  the 
privileges  which  had  been  created  by  the  original  Constitu- 
tion, after  which  he  gave  what  he  regarded  as  the  privileges 
and  immunities  of  citizens  of  the  United  States.  Among 
the  latter  were  those  named  in  the  original  Constitution, 
such  as  immunity  from  ex  post  facto  laws,  but  the  great 
majority  of  them  were  taken  from  the  Bill  of  Rights  or 
the  early  Amendments  and  the  War  Amendments.  After 
enumerating  all  these,  he  said :  "  I  do  not  assert  that  these 
are  the  privileges  and  immunities  of  a  citizen  of  the  United 
States  as  distinguished  from  his  rights  as  a  citizen  of  a 
State,  but  I  do  say  that  any  others,  whether  few  or  many, 
will  be  found  enumerated  in  the  Constitution  of  the  United 
States.  Before  the  Fourteenth  Amendment  the  first  class 
of  privileges  and  immunities  enumerated  above  belonged 
to  citizens  of  the  State  by  operation  of  the  Federal  Consti- 
tution." Then  followed  quotations  from  the  minority  opin- 
ions in  the  Slaughter  House  Cases  and  the  report  of  the 
Judiciary  Committee  of  the  Senate  on  the  petition  of  Susan 
B.  Anthony  and  others  for  the  right  of  suffrage.  Mr.  Nor- 
wood maintained  that  no  new  privileges  were  conferred  by 
the  Fourteenth  Amendment,  but  that  additional  guarantees 
were.  Before  the  adoption  of  that  Amendment,  a  State 
might  have  established  a  particular  religion,  he  declared, 
restricted  the  freedom  of  speech,  or  deprived  its  citizens  of 
any  or  all  of  the  privileges  enumerated  in  the  first  eight 
Amendments,  but  the  Federal  Government  could  not.  All 
this  was  changed,  he  continued,  for  the  same  inhibition 
which  those  Amendments  had  placed  upon  the  Federal  Gov- 
ernment had  been  laid  upon  the  States  by  the  adoption  of 
the  Fourteenth  Amendment.  In  other  words,  he  held 
that  the  privileges  and  immunities  enumerated  in  the  first 
eight  Amendments  had,  by  the  Fourteenth  Amendment, 
been  secured  to  every  citizen  against  denial  or  abridgment 
on  the  part  of  any  State.  To  quote  him  again :  "  And  as 
the  first  eight  Amendments  were  a  prohibition  on  the  Gen- 
eral Government  as  to  the  privileges  and  immunities  of  the 


Congressional  Interpretation  of  Amendment.      267 

citizens  of  the  States  named  in  those  Amendments,  so  the 
Fourteenth  Amendment  was  and  is  a  prohibition  on  the 
States,  forbidding  them  to  abridge  the  same  privileges  and 
immunities."  He  thought,  however,  that  these  privileges 
could  and  should  be  protected  and  enforced  just  as  obliga- 
tions of  contracts — no  punishment  on  the  States,  but  by 
appeal  to  the  Federal  Courts.^" 

Mr.  Pratt,  of  Indiana,  made  the  assertion  that  if  the 
negroes  did  not  possess  all  the  civil  and  political  rights  to  an 
equal  degree  with  the  whites,  the  people  had  failed  to  ac- 
complish what  they  intended  by  the  last  three  Amendments.^^'^ 

Mr.  Morton,  of  the  same  State,  maintained  that  the 
Amendment  secured  the  general  proposition  that  all  men 
were  placed  upon  the  same  level  of  equality  as  to  the  enjoy- 
ment of  civil  rights,  and  that  the  States  still  retained  the 
power  to  fix  the  limitations  in  regard  to  suffrage,  travel, 
etc.,  with  the  single  limitation  that  these  rights  must  not 
be  made  to  depend  upon  a  question  of  race  or  color.  In 
reply  to  the  suggestion  of  Senator  Saulsbury,  of  Delaware, 
he  admitted  that  theoretically,  remedy  could  be  had  in  the 
Supreme  Court  of  the  United  States  for  a  violation  of  this 
principle.  The  Court  would  merely  hold  the  state  law  un- 
constitutional, he  declared,  and  there  would  be  no  damages 
nor  would  there  be  any  penalty  for  the  one  who  had  deprived 
another  of  a  right  or  privilege.  The  framers  of  the  Amend- 
ment, continued  Mr.  Morton,  and  he  added  that  he  knew 
whereof  he  spoke,  did  not  intend  to  leave  the  victim  to  the 
roundabout  costly,  and  therefore  frequently  impossible 
remedy  of  appeal,  but  they  intended  that  a  violation  of 
the  Amendment  should  be  made  a  personal  and  criminal' 
offense.^2^  In  a  word,  his  position  was  that  the  rights  and 
privileges  enumerated  In  the  bill  were  secured  by  the  Four- 
teenth Amendment,  but  that  the  bill  was  necessary  to  give 
real  effect  to  that  Amendment. 

Mr.  Boutwell,  who  had  been  a  member  of  the  Reconstruc- 

"•Ibid.,  Appendix,  pp.  241-44. 

"*  Congressional  Record,  Forty-third  Congress,  ist  Sess.,  p.  4183. 

"*Ibid.,  Appendix,  pp.  359-61. 


268        Adoption   of   the  Fourteenth  Amendment. 

tion  Committee,  and,  therefore,  in  a  position  to  speak  au- 
thoritatively, said  that  the  first  clause  of  the  first  section, 
in  connection  with  the  fifth  section  of  the  Amendment,  was 
sufficient  to  warrant  the  bill  under  discussion.  The  sub- 
stance of  his  argument  was  that  the  first  clause  created  both 
federal  and  state  citizenship  even  against  the  will  of  the 
States,  and  that  in  doing  so,  it  practically  fixed  the  rights 
and  privileges  of  citizens  of  the  States  as  such  as  well  as  that 
of  citizens  of  the  United  States  as  such.  The  States,  he 
contended,  could  not  make  distinctions  among  their  own 
citizens,  all  the  rights  and  privileges  of  one  citizen  belong- 
ing to  all  citizens  of  that  State,  irrespective  of  race  or  color.  / 
At  this  point  he  said  that  the  Supreme  Court  had  erred  int 
the  Slaughter  House  Cases  in  deciding  that  there  were  two 
classes  of  rights — national  and  state.^^^ 

Mr.  Stockton,  of  New  Jersey,  admitted  that  all  citizens 
were  entitled  to  equal  rights  and  accommodations,  but  he 
objected  to  the  bill  on  the  ground  that  the  construction  as 
given  by  Mr.  Sumner,  its  author,  made  it  mean  the  "  same  " 
rights  and  accommodations,  and  not  "  equal."  He  thought 
the  negroes  entitled  to  equal  rights  and  privileges,  but  that 
this  did  not  necessarily  mean  that  they  should  be  admitted 
to  the  same  cars  or  the  same  schools.^^^ 

Mr.  Howe,  of  Wisconsin,  spoke  at  some  length  in  advocacy 
of  the  bill.  His  principle  contention  was  that  increased 
powers  had  been  conferred  upon  the  Federal  Government 
by  the  War  Amendments,  one  of  these  being  the  transfer 
of  the  control  of  citizens  from  the  States  to  the  United 
States.  H  this  had  not  been  accomplished,  he  declared,  it 
was  because  the  draughtsman  who  framed  the  Fourteenth 
Amendment  did  not  know  how  to  construct  a  clause  which 
would  do  it.  Referring  to  the  Slaughter  House  Cases,  Mr. 
Howe  stated  that  he  did  not  believe  the  decision  in  that 
case  denied  the  authority  of  Congress  to  pass  this  bill.  As 
to  that  part  of  the  decision  which  states  that  there  are  cer- 

*"Ibid.,  p.  41 16. 
^^  Ibid.,  p.  4144. 


Congressional  Interpretation   of  Amendment.      269 

tain  privileges  which  belong  to  citizens  of  the  United  States 
as  such  and  that  certain  others  belong  to  them  as  citizens  of 
the  States,  he  stated  that  he  felt  authorized  to  say  that  this 
was  not  the  decision  of  the  Court.  It  was  only  a  part  of  the 
argument  by  which  Justice  Miller  undertook  to  defend  the 
judgment  of  the  Court,  declared  Mr.  Howe.  Even  if  it 
were  the  decision  of  the  Court,  he  continued,  he  believed 
that  the  American  people  would  say,  as  they  had  said  about 
the  Dred  Scott  decision,  that  it  was  not  law  and  could  not 
be  law.  If  the  Fourteenth  Amendment  secured  the  protec- 
tion only  of  such  privileges  and  immunities  as  pertained 
to  them  as  citizens  of  the  United  States,  then  it  was  the 
idlest  piece  of  verbiage  that  could  possibly  be  constructed, 
declared  the  Wisconsin  Senator,  for  that  had  ever  been  the 
case.  It  was  useless,  he  contended,  to  say  that  this  was  a 
privilege,  and  that  was  not,  in  arguing  the  question  of  power, 
for  it  had  nothing  whatever  to  do  with  it.  It  was  all  right 
to  discuss  whether  it  was  expedient  or  inexpedient  to  clothe 
this  man  with  this  or  that  privilege,  but  when  the  legislative 
tribunal  had  spoken,  its  discretion  guided  the  judgment  of 
every  one,  and  from  its  decision  there  was  no  appeal  but 
to  the  people.^^* 

Mr.  Stewart,  of  Nevada,  thought  the  bill  inexpedient  as 
tending  to  retard  rather  than  aid  the  education  of  the 
negroes,  though  he  stated  that  he  believed  Congress  had  the 
constitutional  power  to  pass  it.^^^  Notwithstanding  the 
inexpediency  of  the  bill  to  his  mind,  Mr.  Stewart  voted 
for  it. 

Mr.  Sargent,  of  California,  moved  an  amendment  to  the 
first  section  of  the  bill  providing  that  any  State  or  school 
district  might  be  allowed  to  have  separate  schools  if  equal 
facilities  and  opportunities  were  given.  This  was  defeated 
by  a  vote  of  26  to  21.^-® 

Mr.  Carpenter  stated  that  he  would  vote  against  the  bill  on 
the  ground  that  the  Federal  Government  did  not  have  the 

^'^  Ibid.,  pp.  4147-51- 
"^  Ibid.,  p.  4167. 
""Ibid.,  p.  4167. 


270        Adoption  of  the  Fourteenth  Amendment. 

power  to  organise  or  regulate  the  juries  of  the  States.^^^ 
The  other  provisions  of  the  bill  he  evidently  approved. 

Mr.  Sargent  also  offered  an  amendment  to  the  effect  that 
all  should  be  entitled  to  the  advantages  of  the  common  school 
system,  instead  of  "  the  common  schools."  The  purpose  of 
this  was  to  permit  the  States  to  have  separate  schools,  as  was 
pointed  out  by  Mr.  Edmunds  and  stated  by  Mr.  Sargent. 
Mr.  Sargent  declared  that  the  purpose  of  the  proposed  bill 
was  political — to  retain  the  negro  vote.  His  statement 
should  be  given  more  weight  when  it  is  remembered  that  he 
was  a  Republican  and  voted  for  the  bill  on  its  final  passage. 
His  amendment  was  rejected  by  a  vote  of  28  to  16.^^^ 

Mr.  Edmunds,  of  Vermont,  spoke  briefly  just  before  the 
final  vote  was  taken,  his  remarks  being  called  forth  by  the 
amendment  offered  by  Mr.  Sargent.  He  took  the  position 
that  the  Fourteenth  Amendment  secured  absolute  equality, 
and  not  half-equality.  If  Mr.  Sargent's  amendment  was 
accepted,  he  contended,  the  effect  of  the  bill  would  be  prac- 
tically nothing,  since  the  States  already  had  separate  schools, 
cars,  etc.  The  Fourteenth  Amendment  was  general  and 
sweeping,  he  continued,  and  leveled  all  distinctions  on 
account  of  race  or  color.^^*  It  will  be  remembered  that  Mr. 
Edmunds  became  a  member  of  the  Senate  just  four  days 
before  the  enactment  of  the  Civil  Rights  Bill  over  the  Presi- 
dent's veto  April  9,  1866.  He  was  present  when  the  Four- 
teenth Amendment  was  before  the  Senate  and  voted  for  its 
submission  to  the  States. 

The  bill  passed  the  Senate  at  7  o'clock  on  the  morning  of 
May  23,  1874,  after  an  all  night  session,  the  Senate  being  in 
continuous  session  for  twenty  hours.  The  vote  was  29  to 
16  in  its  favor,  Boreman  and  Carpenter  being  the  only  Re- 
publicans voting  against  it.^^°  Of  those  voting  for  the  bill, 
the  following  had  taken  part  in  the  enactment  of  the  Four- 
teenth Amendment:  Messrs.  Allison,    Boutwell,    Conkling, 

"^  Ibid.,  p.  4166. 
*^Ibid.,  pp.  4171-72. 
'=»  Ibid.,  pp.  4171-75- 
""  Ibid.,  p.  4176. 


Congressional  Interpretation  of  Amendment.      271 

Edmunds,  Howe,  Morrill  of  Vermont,  Stewart,  Washburne 
and  Windom.  Messrs.  Sherman,  Morrill  of  Maine,  An- 
thony and  Chandler  were  absent.  Of  these  Mr.  Morrill 
was  opposed  to  the  bill.  Two  of  these,  Messrfe.  Boutwell 
and  Conkling-,  were  members  of  the  Reconstruction  Commit- 
tee, and  the  fact  that  those  who  voted  for  the  Fourteenth 
Amendment,  with  the  exception  of  Messrs.  Carpenter,  who 
opposed  the  bill  in  regard  to  one  point  only,  and  Morrill,  of 
Maine,  supported  the  bill,  must  be  given  due  weight.  It 
should  also  be  remembered  in  this  connection  that  Mr. 
Conkling,  who  had  at  first  opposed  the  first  section  of  the 
Amendment  when  offered  by  Mr.  Bingham,  February  28, 
1866,  now  supported  this  bill,  thereby  showing  that  he 
accepted  Mr.  Bingham's  idea  as  to  the  purpose  and  effect  of 
that  section. 

After  this  somewhat  detailed  account  of  the  persevering 
efforts  of  Mr.  Sumner  in  behalf  of  his  Civil  Rights  Bill,  of 
his  repeated  rebuffs,  and  its  final  enactment  by  Congress, 
though  not  until  after  his  death,  there  seems  to  be  but  one 
conclusion  possible.  That  conclusion  is  that  all  the  debates 
on  it,  all  the  opinions  expressed  for  and  against  it,  and 
especially  by  those  who  had  been  members  of  the  39th  Con- 
gress, strengthen  the  conclusion  which  had  been  reached  in 
the  preceding  chapters  as  to  the  effect  and  purpose  of  the 
Amendment.  Of  all  the  evidence,  only  a  very  minor  part 
of  it  is  against  this  conclusion,  and  any  one  who  will  go 
through  all  these  debates  will  be  impressed  with  this  fact. 
Eliminating  the  fact,  for  fact  it  is,  that  the  prime  motive 
of  a  majority  of  those  who  voted  for  the  bill  was  political, 
it  remains  nevertheless  that  they  fully  believed  they  had  the 
power  to  pass  it.  The  main  purpose  of  the  Fourteenth 
Amendment,  must  not  be  lost  sight  of.  Underneath  the 
motive,  and  of  greater  importance  for  the  purpose  contem- 
plated in  this  study,  lies  the  question  of  power.  Had  there 
been  no  partisanship,  the  bill  would  of  course  not  have  been 
passed.  It  is  equally  true  that  it  would  not  have  been  en- 
acted had  not  a  majority  of  Congress  thought  that  the 


272        Adoption  of   the  Fourteenth  Amendment. 

Fourteenth  Amendment  authorized  it,  and  this  is  the  im- 
portant question. 

The  second  session  of  the  43d  Congress  met  December 
7,  1874.  On  the  1 6th  of  the  same  month  Mr.  Butler,  of 
Massachusetts,  reported  back,  with  amendments,  the  Civil 
Rights  Bill  which  had  been  debated  to  some  extent  at  the 
first  session.  This  bill  was  almost  identical  with  the  one 
passed  by  the  Senate  at  the  first  session.  When  it  was 
under  consideration  February  3,  1875,  ^^-  Hunton,  of  Vir- 
ginia, in  opposing  it,  said  the  privileges  and  immunities  of 
citizens  of  the  United  States  were  to  be  found  in  the  Con- 
stitution. As  illustrating  these,  he  quoted  the  Fourth 
Amendment  which  secures  persons  against  unreasonable 
searches,  etc.^'^  Mr.  Smith,  of  the  same  State,  though  a 
Republican,  opposed  the  bill,  declaring  it  unconstitutional 
and  inexpedient.  The  reasoning  and  decision  of  Judge 
Griswold,  of  the  Ohio  Supreme  Court,  were  quoted  by  Mr. 
Smith.  One  Gardiner,  a  negro,  had,  on  the  nth  of  Febru- 
ary, 1873,  purchased  a  ticket  to  the  dress  circle  of  a  theater, 
but  was  refused  his  seat  by  the  ushers  with  the  understand- 
ing that  his  money  would  be  returned.  Thereupon  the 
negro  brought  suit  against  the  manager  of  the  theater  under 
the  Civil  Rights  Bill  of  1866,  but  Judge  Griswold  held  that 
this  bill  had  no  application  to  the  case.  Gardiner  could 
bring  suit,  he  held,  for  a  breach  of  contract  just  as  if  he 
were  a  white  man,  but  every  one  could  use  his  property  as 
he  saw  fit  so  long  as  he  wronged  no  one  nor  committed  a 
nuisance.  He  further  declared  that  the  manager  could 
make  a  rule  excluding  negroes  from  the  dress  circle.^^^ 

Mr.  Finck,  of  Ohio,  in  reply  to  a  query  from  Mr.  Hale,  of 
New  York,  stated  that  he  gave  no  effect  whatever  to  the 
fifth  section  of  the  Fourteenth  Amendment,  holding  that 
Congress  would  have  just  as  much  power  if  it  had  been 
omitted.  His  position  in  regard  to  the  Amendment  was  that 
it  was  merely  a  prohibition  upon  the  States,  and  that  it  con- 
ferred no  affirmative  power  upon  Congress  to  go  into  the 

""Cong.  Rec,  43d  Cong.,  2d  Sess.,  Appendix,  p.  119. 
'"  Ibid.,  Appendix,  p.  157. 


Congressional  Interpretation  of  Amendment.      273 

States  and  regulate  the  intercourse  of  their  citizens.  He 
quoted  from  the  decision  of  the  Ohio  Supreme  Court  in 
1 87 1  (21  Ohio  State  Reports),  in  which  the  Court  held  that 
the  State  had  the  right  to  regulate  its  schools  regardless  of 
the  Fourteenth  Amendment.  If  the  bill  before  Congress 
was  Constitutional,  he  asserted,  then  there  was  no  limit  to 
the  power  of  the  Federal  Government.^^^  In  this  last  state- 
ment Mr.  Storm,  of  Pennsylvania,  concurred.  The  latter 
also  referred  to  the  fact  that  the  Judiciary  Committee  of  the 
Senate  had  twice  reported  adversely  upon  this  bill.^^*  It 
must  be  remarked,  however,  that  no  reasons  were  given  for 
these  adverse  reports,  and  that  the  statement  was  made  in 
the  Senate  to  this  effect,  some  members  of  the  Committee 
saying  that  it  was  not  reported  adversely  on  constitutional 
grounds. 

Mr.  Hale,  of  New  York,  spoke  very  forcibly  and  con- 
vincingly the  next  day,  February  4,  in  regard  to  the  bill 
and  alluded  to  the  fact  that  he  and  Mr,  Finck  had  been 
members  of  the  Congress  which  proposed  the  Fourteenth 
Amendment.  "  I  remember,"  he  stated,  "  if  the  gentleman 
from  Ohio  [Mr.  Finck]  has  forgotten  it,  as  he  probably 
may,  that  it  was  my  fortune,  standing  alone  in  my  party, 
to  oppose  the  Fourteenth  Amendment  by  my  vote  and  by 
my  voice,  upon  the  ground,  which  seemed  to  me  to  be  one 
I  could  not  forsake,  that  it  did  change  the  constitutional 
power  of  Congress,  that  it  changed  the  theory  of  our  Gov- 
ernment, and  introduced  a  range  of  legislation  utterly  lack- 
ing in  the  old  Constitution  or  in  any  previous  Amendments 
to  it  except  the  Thirteenth.  I  voted  against  the  Fourteenth 
Amendment  on  that  ground  alone,  fully  conceding  the  pro- 
priety of  the  provisions  of  the  Article,  except  the  last  sec- 
tion, claiming  that  that  section  was  to  a  certain  extent  a 
revolution  of  our  form  of  Government  in  giving  Congress 
a  control  of  matters  which  had  hitherto  been  confined  ex- 
clusively to  state  control.  In  the  position  I  then  took  I 
certainly  understood  in  the  Thirty-ninth  Congress  that  my 

'"  Ibid.,  pp.  947-49. 
'"  Ibid.,  p.  951. 
18 


274        Adoption  of  the  Fourteenth  Amendment. 

friend  from  Ohio,  whose  opinion  on  legal  and  constitutional 
questions  I  value  highly,  fully  concurred.  I  understood 
that  the  entire  body  of  his  political  associates  on  the  other 
side  of  the  House  in  that  Congress  concurred  with  me." 
Mr.  Hale  does  not  seem  to  have  exaggerated  in  the  least, 
for  the  facts  bear  out  his  statements.  The  first  ten  Amend- 
ments, in  his  opinion,  merely  constituted  a  Bill  of  Rights, 
but  there  was  no  provision  in  the  Constitution  or  in 
those  Amendments  which  empowered  Congress  to  legislate 
in  regard  to  prohibitions,  restrictions,  or  rights,  and  the 
legislative  power  was  limited  to  the  carrying  out  of  the 
powers  granted.  It  seems  that  the  clause  in  regard  to  the 
obligation  of  contracts  would  be  a  good  illustration  of  this 
point.  He  then  cited  the  fifth  section  of  the  Fourteenth 
Amendment  as  giving  an  absolute  and  unlimited  power  to 
enforce  the  provisions  of  that  Amendment  by  appropriate 
legislation.  H  the  doctrine  laid  down  by  Chief  Justice 
Marshall  in  McCulloh  vs.  Maryland  be  followed,  continued 
Mr.  Hale,  there  could  be  no  question  as  to  the  power  of 
Congress  under  that  Amendment  to  enact  legislation  to 
remedy  the  great  evil  against  which  it  proposes  to  guard. 
The  doctrine  of  the  cases  referred  to  is  that  within  the  grant 
of  power  Congress  could  use  its  own  discretion,  and  Mr. 
Hale  held  that,  according  to  this  decision,  the  question  of 
the  fitness  or  desirability  of  such  legislation  was  for  Con- 
gress alone  and  not  for  the  Courts. ^^^ 

Mr.  Chittenden,  of  New  York,  though  a  Republican  and 
admitting  that  the  bill  was  in  conformity  with  the  Amend- 
ments, opposed  it  because  he  thought  it  inexpedient,  assert- 
ing that  the  North  would  oppose  it  if  it  had  the  same  pro- 
portion of  negroes  as  the  South,"^ 

Mr.  Garfield,  of  Ohio,  advocated  the  bill  in  a  short 
speech,^^''  though  he  had  opposed  a  similar  bill  at  an  earlier 
date.  Mr.  Cessna,  of  Pennsylvania,  moved  the  bill  which 
had  passed  the  Senate  at  the  previous  session  as  a  substi- 

"•  Ibid.,  pp.  979-80. 
"•  Ibid.,  p.  982. 
"'Ibid.,  p.  1005. 


Congressional  Interpretation  of  Amendment.      275 

tute  for  the  House  bill,  but  this  was  defeated  by  a  vote  of 
114  to  148.^^^  The  Senate  bill  was  more  radical.  Mr. 
White,  of  Alabama,  offered  a  substitute  to  the  effect  that 
separate  schools,  separate  accommodations  on  railroads,  at 
hotels,  etc.,  might  be  provided  if  they  were  equal  in  equip- 
ment and  kind  for  both  races.  The  substitute  also  pro- 
vided that  no  one  could  be  excluded  from  the  jury  box  on 
account  of  color  or  race.  This  was  rejected  by  a  vote  of 
91  to  114.^^®  The  amendment  of  Mr.  Kellogg,  striking 
out  all  reference  to  common  schools  was  agreed  to,  how- 
ever, by  a  vote  of  128  to  48."'*  The  bill  then  passed,  Feb- 
ruary 4,  1875,  t)y  a  vote  of  162  to  99,  28  not  voting.^** 
Among  those  in  favor  of  the  bill,  the  following  were  also 
members  of  the  Thirty-ninth  Congress:  Messrs.  Dawes, 
Garfield,  Hale  (of  New  York),  Kelley,  Lawrence,  Poland 
and  Wilson  (of  Iowa).  - — 

Mr.  Thurman,  when  the  bill  was  before  the  Senate  on 
February  26,  moved  to  amend  section  four  by  striking  out 
"  or  of  any  State."  He  held  that  Congress  had  no  power 
to  declare  who  should  sit  on  the  jury  in  state  courts,  this 
not  being  a  right  of  a  citizen  of  the  United  States  as  such. 
He  declared  that  if  Congress  could  do  this,  there  \yas  no 
limit  to  Federal  power  and  that  the  States  were  nothing 
more  than  counties.  Mr.  Thurman  also  noted  the  fact 
that  the  reverence  for  States  Rights  had  been  fading  out 
of  the  minds  of  Senators  since  he  had  taken  a  seat  in  that 
body.^*^  His  amendment  was  defeated  later  by  a  vote  of 
40  to  36.^*^ 

Mr.  Boutwell  stated  that  he  doubted  whether  Mr.  Thur- 
man was  correct  in  saying  that  States  Rights  had  been 
fading  out,  but  admitted  that  the  power  of  the  States  was 
not  what  it  once  was.  On  this  particular  point  he  made 
the  following  immistakable  declaration :    "  The  Thirteenth, 


'"Ibid.,  p.  ion. 

'**Ibid.,  p.  loio. 

^"Ibid.,  p.  loio. 

'"Ibid.,  p.  ion. 

'"Ibid.,  pp.  1791-92. 

'"  Ibid.,  p.  1867. 


2/6        Adoption   of   the  Fourteenth  Amendment. 

Fourteenth  and  Fifteenth  Amendments  did  limit  the  power 
of  the  States;  they  did  extend  the  power  of  the  General 
Government;  and  the  question  we  are  considering  almost 
continually  is  the  extent  to  which  the  power  of  the  States 
has  been  limited  by  these  Amendments  and  the  extent  to 
which  the  power  of  the  General  Government  has  been  car- 
ried by  these  several  Amendments."  In  regard  to  the 
decision  in  the  Slaughter  House  Cases,  he  declared  that 
that  decision  only  applied  to  cases  exactly  similar  to  those, 
and  that  it  was  not  law  for  the  Senate  when  considering  a 
question  which  was  diflferent  from  the  one  on  which  the 
Court  had  passed.  The  first  privilege  of  citizens  of  the 
United  States,  he  continued,  was  that  they  were  citizens  of 
the  State  wherein  they  resided,  and  that  the  chief  right  of 
a  citizen  of  a  State  was  that  he  was  the  equal  before  the 
law  of  every  other  citizen  of  that  State.  It  was  this  right 
of  being  equal  before  the  law  which  he  derived  from  being 
a  citizen  of  the  United  States,  and  consequently  a  citizen 
of  the  State,  which  the  Federal  Government  was  enabled 
to  see  enforced  under  the  Fourteenth  Amendment,  he 
declared."* 

Mr.  Edmunds  contended  that  the  right  to  serve  on  the 
jury  was  a  civil  right  on  the  si^me  basis  as  the  right  to  be 
a  witness.^*'  Mr.  Thurman  pdinted  out  the  inconsistency 
in  the  position  of  the  advocatesXof  the  bill  in  saying  that 
the  States  might  make  discriminations  for  everything  and 
anything  except  about  race  and  c6lor.  He  asked  for  the 
provision  which  empowered  Congress  to  forbid  this  dis- 
crimination while  permitting  discrimination  on  account  of 
ignorance,  property,  age,  etc.  If  the  principle  of  the  bill 
be  accepted,  he  continued,  then  Congress  could  prescribe 
the  qualifications  of  jurors  by  a  process  of  elimination  and 
prohibition.^*®  Mr.  Carpenter  thought  the  section  relating 
to  jurors  was  unconstitutional,  and  so  voted  against  the 
bill."^ 

'"  Ibid.,  pp.  1792-93- 
"*  Ibid.,  p.  1866. 
'"  Ibid.,  pp.  1866-67. 
'"Ibid.,  pp.  1861  and  1870. 


Congressional  Interpretation  of  Amendment.      277 

The  bill  passed  the  Senate  on  February  27,  1875,  ^y  ^ 
vote  of  38  to  26.  Among  those  supporting  the  bill  were 
the  following  who  were  also  members  of  the  Thirty-ninth 
Congress:  Messrs.  Allison,  Anthony  (of  R.  I',),  Boutwell, 
Chandler  (of  Mich.),  Conkling,  Cragin  (N.  H.),  Edmunds, 
Howe,  Morrill  (Vt.),  Sherman,  Stewart,  Washburne 
(Mass.),  Windom  (Minn.),  Ramsey  (Minn.)."*  The 
President  approved  the  bill  on  March  i. 
/_The  Civil  Rights  Act  of  1875,  the  principal  sections  of 
which  were  declared  unconstitutional  by  the  Supreme  Court 
some  years  later,  marks  the  culmination  of  the  efforts  of 
Congress  to  enact  laws*  for  the  enforcement  of  the  Four- 
teenth Amendment.  The  Republicans  had  been  overwhelm- 
ingly defeated  at  the  election  in  the  fall  of  1874  when  the 
proposed  Civil  Rights  Bill  had  been  one  of  the  main  issues, 
and  when  that  party  again  had  the  majority  in  all  branches 
of  the  Government,  it  was  evidently  regarded  as  unwise  to 
renew  the  subject.  However  futile  were  the  efforts  of 
Congress  to  give  vitality  to  the  Amendment  as  interpreted 
by  itself  and_by  those  who  had  most  to  do  with  its  drafting 
and  adoption/  the  fact  remains  that  nearly  all  the  evidence 
goes  to  suet^n  the  position  of  Congress  as  far  as  the  ques- 
tion of  power  and  authority  is  concerned.  The  evidence 
given  in  this  chapter  but  corroborates  and  strengthens  that 
given  in  the  previous  chapters  as  to  the  meaning  of  the 
Fourteenth  Amendment,  while  all  that  has  gone  before 
sustains  the  position  and  contentions  of  those  who  advo- 
cated the  several  measures  considered  in  this  chapter. 
This  does  not  mean  that  those  measures  were  wise  or  just, 
and  should  have  been  passed,  but  it  merely  means  that, 
according  to  the  purpose  and  intention  of  the  Amendment 
as  disclosed  in  the  debates  in  Congress  and  in  the  several 
state  Legislatures  and  in  other  ways.  Congress  had  the  con- 
stitutional power  to  enact  direct  legislation  to  secure  the 
rights  of  citizens  against  violation  by  individuals  as  well 
as  by  States. 


Ibid.,  p.  1870. 


\J 


T 


appendix; 

The  War  Amendments. 

Article  XIII.  Section  i.  Neither  slavery  nor  involun- 
tary servitude,  except  as  a  punishment  for  crime,  whereof 
the  person  shall  have  been  duly  convicted,  shall  exist  within 
the  United  States,  or  any  place  subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

Article  XIV.  Section  i.  All  persons  born  or  natural- 
ized in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned  among 
the  several  States  according  to  their,  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  exclud- 
ing Indians  not  taxed.  But  when  the  right  to  vote  at  any 
election  for  the  choice  of  Electors  for  President  and  Vice- 
President  of  the  United  States,  Representatives  in  Con- 
gress, the  executive  or  judicial  officers  of  a  State,  or  the 
members  of  the  Legislature  thereof,  is  denied  to  any  of 
the  male  inhabitants  of  such  State,  being  twenty-one  years 
of  age  and  citizens  of  the  United  States,  or  in  any  way 
abridged  except  for  participation  in  rebellion  or  other  crime, 
the  basis  of  representation  therein  shall  be  reduced  in  the 
proportion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  twenty-one  years 
of  age  in  such  State. 

278 


Appendix.  279 

Section  3.  No  person  shall  be  a  Senator  or  Representa- 
tive in  Congress,  or  Elector  of  President  or  Vice-President, 
or  hold  any  office,  civil  or  military,  under  the  United  States, 
or  under  any  State,  who,  having  previously  taken  an  oath 
as  a  member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member. of  any  State  Legislature,  or  as  an 
executive  or  judicial  officer  of  any  State,  to  support  the 
Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  enemies  thereof.  But  Congress  may,  by  a 
vote  of  two  thirds  of  each  house,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pensions  and  bounties  for  services  in  suppressing 
insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  State  shall  assume  or 
pay  any  debt  or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave ;  but  all  such  debts,  obli- 
gations, and  claims  shall  be  held  illegal  and  void. 

Section  5,  Congress  shall  have  power  to  enforce,  by 
appropriate  legislation,  the  provisions  of  this  article. 

Article  XV.  Section  i.  The  rights  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by 
the  United  States,  or  by  any  State,  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

Section  2.  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 


INDEX 


Alabama,  ratified  by,  191;  re- 
jected by,  I94f. 

Amendments,  see  Thirteenth, 
Fourteenth,  and  Fifteenth 
Amendments,  and  Bill  of 
Rights. 

Amnesty  Bill,  ch.  5. 

Arkansas,  ratified  by,  190;  re- 
port of  committee,  200;  re- 
jected by,  201. 

Atlanta  Intelligencer,  quoted, 
154- 

Baker,  J.,  remarks  by,  93. 
Baltimore  American,  quoted,  48, 

49. 
Barnes  vs.  Browning,  cited,  47. 
Barron  vs.  Baltimore,  cited,  59, 

233- 
Beck,   J.    M.,   remarks   by,   216, 

229f.,  261. 
Benjamin,  J.  F.,  remarks  by,  104, 
Bill     of     Rights      (first     eight 

Amendments),   to   be   made 

applicable  to  the  States,  74, 

79,  81,  8s,  86,  94,  142,  151, 
187,  233-235,  241,  248,  255, 
256,  261,  266,  274. 

Bingham,  John  A.,  remarks  by, 
30,  35,  56,  58,  65,  (>^,  71,  79, 

80,  150,  219,  230,  23lflf. 
Blaine,  Jas.  G.,  remarks  by,  98, 

99f.,  129. 

Blair,  Senator,  of  Maryland,  re- 
marks by,  245,  259. 

Boreman,  Senator,  of  West  Vir- 
ginia, remarks  by,  259. 

Boutwell,   Geo.   S.,   remarks  by, 

61,    117,   128,  211,  2I2ff.,  268, 

275f- 
Boyer,   B.   M.,   remarks   by,   76. 

ii6f.,  129. 
Broomall,    J.    M.,    remarks    by, 

29,  ^(i,  98,  127. 
Browning,   O.   H.,  letter  g^iving 

exposition    of    the    Amend- 


ment, 146;  editorials  on  this 
letter,  144,  147,  IS4- 

Burchard,  Mr.,  of  Illinois,  re- 
marks by,  243f. 

Butler,  Benjamin,  remarks  by, 
260,  272. 

California,  Amendment  not  acted 

on,  207. 
Carpenter,  Matthew,  remarks  by, 

223,  253,  254,  255,  269,  276. 
Caucus,  Republican,  11,  12,  120, 

121. 
Cessna,    Mr.,    of    Pennsylvania, 

remarks  by,  274f. 
Charleston     (S.     C)      Courier, 

quoted,  41,  154. 
Chittenden,  Mr.,  of  New  York, 

remarks  by,  274. 
Chronicle  (Washingfton),  quoted, 

143- 
Cincinnati    Commercial,    quoted, 

.  .  41,  43,  45,  46,  144,  146. 
Citizenship,  Clause  defining,  88- 
90,  94;  not  chief  purpose  of 
Fourteenth  Amendment,  63, 

83. 

Civil  Rights  Bill  of  1866,  discus- 
sion of,  15,  22-34;  outline 
of,  20;  votes  on,  25,  35,  38, 
39;  veto  of,  35;  passage  over 
veto,  38,  39 ;  meaning  of,  40, 
92;  efforts  to  secure  privil- 
eges under,  46ff. ;  cases  un- 
der, 47ff. ;  judicial  decisions 
concerning,  49ff. ;  constitu- 
tional, 48;  unconstitutional, 
50;  reenacted,  219,  222-224; 
see  also  218,  272,  and  the 
Civil  Rights  Bill  of  1875. 

Civil  Rights  Bill  of  1875,  2i8ff., 
277. 

Cobum,  Mr.,  of  Indiana,  re- 
marks by,  241. 

Colfax,  Speaker,  remarks  by,  40, 
149. 


281 


282 


Index 


Confederate  debt,  not  to  be  paid, 
133-136. 

Congress,  the  Amendment  be- 
fore, SS-139;  efforts  to  en- 
force the  War  Amendments, 
214-279.  See  also  Civil 
Rights  and  Freedm-cn's 
Bureau  Bills. 

Congressional  interpretation  of 
the  Amendment,  2ioff. 

Conkling,  Roscoe,  remarks  by, 
59,  loi,  III,  128,  271. 

Connecticut,  Amendment  ratified 
by,  161. 

Cook,  B.  C,  remarks  by,  26,  137. 

Corfield  vs.  Coryell,  cited,  85, 
181,  23s,  243,  246. 

Cowan,  Edgar,  remarks  by,  19, 
22,  23,  25. 

Cox,  S.  S.,  remarks  by,  24of. 

Cullom,  Shelby  M.,  remarks  by, 
216. 

Davis,  Garrett,  remarks  by,   15, 

18,  24,  38,  136,  254. 
Davis,  T.  T.,  remarks  by,  30,  58. 
Dawes,  H.  L.,  remarks  by,  241  f. 
Dawson,  J.  L.,  remarks  by,  16. 
Delano,   Columbus,  remarks  by, 

29-30,  150. 
Delaware,  rejected  by,  204. 
Doolittle,  Jas.  R.,  remarks  by,  19, 

89,  90,  123,  125. 

Edmunds,  Geo.  F.,  remarks  by, 

219,  257f.,  270,  276. 
Eldridge,  C.  A.,  remarks  by,  28, 

77,  2iSf. 
Eliot,  T.  D.,  remarks  by,  yj,  102. 
Enforcement  Bills,  2i8ff. 

Famsworth,  J.  F.,  remarks  by, 
79,  23of. 

Federalist,  The,  quoted,  238. 

Ferry,  Senator,  of  Connecticut, 
remarks  by,  257. 

Fessenden,  W.  P.,  report  of  Re- 
construction Committee  by, 
71 ;  remarks  by,  74,  107. 

Fifteenth  Amendment,  bills  to 
enforce,  2ioflF. ;  text  of,  279. 

Finck,  W.  E.,  remarks  by,  75, 
272. 

Florida,  ratified  by,  190;  rejected 
by,  I93f. 

Force,  M.  F.,  remarks  by,  150. 


Fourteenth  Amendment,  section 
I,  55-97;  section  2,  97-127; 
section  3,  127-133;  section  4, 
133-136;  section  5,  136-139; 
forms  in  which  proposed,  56, 
60,  61,  66,  98,  100,  109,  III, 
113,  127,  128,  131;  debates 
on,  56-60,  74-93,  97-io6,  137- 
139,  I 15-126,  129-133,  137- 
139 ;  before  Reconstruction 
Committee,  60-71,  106-114, 
128;  votes  on  in  Committee, 
62,  66,  67,  68,  109,  no.  III, 
113,  114,  128;  votes  on  in 
the  House,  82,  93,  103,  104, 
118,  126,  131,  132,  134;  votes 
on  in  the  Senate,  90,  92,  123, 
126,  131,  132;  authorship  of, 
69,  71;  purpose  of,  32,  33, 
56,  64,  69,  81,  94,  96,  127- 
133,  137,  139,  140-142,  146, 
153-157,  187,  233  (see  also 
the  several  States,  the  Bill 
of  Rights,  and  debates  in 
chapter  5)  ;  incorporation  of 
Civil  Rights  Bill,  75,  78,  81, 
86,  94,  96,  137,  140,  141,  143, 
145,  149,  153,  155,  228,  231, 
237,  24s ;  to  make  Bill  of 
Rights  binding  upon  the 
States,  74,  79,  81,  85,  86,  94, 
142,  151,  187,  233,  241,  248, 
255,  256,  261,  266,  274;  text 
of,  278;  before  the  people, 
140-160;  ratified  by  the 
States,  i6iflF. ;  congressional 
interpretation,  2ioff. ;  see 
also  the  several  States; 
caucus  for  ratification  of, 
208. 

Freedmen's  Bureau  Bill  of  1866; 
introduction  of,  12;  out- 
lined, 13-14;  votes  on,  16, 
17;  debated,  16,  17;  vetoed, 
17;  veto  sustained,  19;  later 
reenacted  over  veto,  19. 

Frelinghuysen,  Senator,  of  New 
Jersey,  remarks  by,  226, 
246f.,  265. 

Garfield,  Jas.  A.,  remarks  by,  75, 
116,  129,  238ff.,  274. 

Georgia,  ratified  by,  191 ;  rejected 
by,  I92f. 

Golladay,  Mr.,  of  Tennessee,  re- 
marks by,  241. 


Index 


283 


Grimes,  J.  W.,  remarks  by,  71, 

74- 
Grinnell,  J.  B.,  remarks  by,  17. 
Guthrie,  James,  remarks  by,  25, 

2,7- 

Hale,  R.  S.,  57,  S8,  273. 

Hamilton,  Senator,  of  Maryland, 
remarks  by,  222. 

Harding,  A.,  remarks  by,  93,  139. 

Harris,  Ira,  remarks  by,  128. 

Henderson,  J.  B.,  remarks  by,  24, 
91  f.,  I04f.,  125. 

Hendricks,  T.  A.,  remarks  by, 
14,  37,  91,  122,  138,  149. 

Herald  (N.  ,Y.),  quoted,  40,  41, 
141,  145,  147. 

Herndon,  Mr.,  of  Texas,  re- 
marks by,  264. 

Hill,  B.  H.,  letter  to  New  York 
Herald,  159. 

Hill,  Ralph,  remarks  by,  28. 

Hoar,  Geo.  F.,  remarks  by,  229. 

Holman,  Mr.,  of  Indiana,  re- 
marks by,  241. 

Hotchkiss,   G.   W.,   remarks  by, 

59- 

Howard,  J.  M.,  remarks  by,  23, 
84ff.,  88,  89,  90,  118,  122, 
131,  135,  U7,  221. 

Howe,  T.  O.,  remarks  by,  91, 
259,  268. 

Hunton,  Mr.,  of  Virginia,  re- 
marks by,  272. 

Illinois,  ratified  by,  171. 
Indiana,   ratified  by,   I73ff. 
Iowa,  ratified  by,  189. 

Johnson,  President,  Veto  of 
Freedmen's  Bureau  Bill,  17- 
18;  veto  of  Civil  Rights  Bill, 
35;  telegram  advising  rejec- 
tion of.  Amendment,  195. 

Johnson,  Reverdy,  author  of  re- 
port of  minority  of  the 
Committee,  7^;  remarks  by, 
23,  37,  89,  92,  io7f.,  III. 

Kansas,  ratified  by,  172. 
Kelley,  W.  D.,  remarks  by,  57, 

76,  117. 
Kentucky,  rejected  by,  204. 
Kerr,  M.  C,  remarks  by,  16,  30, 

216,  229. 


Lansing,  Mr.,  of  New  York,  re- 
marks by,  242. 

Latham,  G.  L.,  remarks  by,  32, 
35. 

Lawrence,  Wm.,  •  remarks  by, 
112,  262. 

Livingston  vs.  Moore,  cited,  233. 

Louisiana,  ratified  by,  190;  re- 
jected by,  203. 

Louisville  Journal,  quoted,  157. 

Lowe,  Mr.,  of  Kansas,  remarks 
by,  237. 

McCulloh  vs.  Maryland,  cited, 
274. 

McDougal,  J.  A.,  remarks  by, 
25,  38. 

McKee,  Samuel,  remarks  by,  216. 

Madison,   James,   quoted,   238. 

Maine,  ratified  by,  172. 

Marshall,  S.  M.,  remarks  by,  16. 

Maryland,  rejected  by,  204;  re- 
port of  Committee,  205ff. 

Massachusetts,  ratified  by,  i86ff. ; 
report  of  Committee  of 
Legislature,  i87ff. 

Memphis  Avalanche,  quoted,  157. 

Michigan,  ratified  by,  186. 

Miller,  G.  F.,  remarks  by,  118, 
216. 

Mills,  Roger  Q.,  remarks  by, 
261. 

Minnesota,  ratified  by,  i75f. 

Mississippi,  ratified  by,  191 ;  re- 
jected by,  203. 

Missouri,  ratified  by,  I72f. 

Mobile  Register,  quoted,  45. 

Montgomery  Mail,  quoted,  158. 

Morgan,  E.  D.,  remarks  by,  19, 
38. 

Morgan,  Geo.  W.,  remarks  by, 
149. 

Morrill,  Lot  M.,  violated  pledge 
to  unseat  Stockton,  39;  re- 
marks by,  252f. 

Morton,  Senator,  of  Indiana,  re- 
marks by,  221,  245,  251,  254, 

*-       256,  267. 

Moulton,  S.  W.,  remarks  by,  17. 

Nashville  Union  and  American, 

quoted,  157. 
National     Intelligencer,     quoted, 

41,  44,  46,  152. 
Neal,   Judge   Stephen,   claim   to 


284 


Index 


authorship    of    Amendment, 

69,  70. 
Nebraska,  ratified  by,  189. 
Negroes,    efforts    of,    to    secure 

civil    rights,   46ff.,    264;    see 

also  Civil  Rights  Bill. 
Nevada,  ratified  by,  172. 
New     Hampshire,     ratified     by, 

i6iff. 
New    Jersey,    ratified    by,    165; 

ratification  withdrawn,  i65ff. 
New  York,  ratified  by,  i68f. 
Noell,  T.  E.,  remarks  by,  39. 
North,  Attitude  of  the,  140-153; 

see  also  the  several   States. 
North  Carolina,  ratified  by,  190; 

report  of  Committee,  I96ff. ; 

rejected  by,  200. 
Norwood,   Senator,  of   Georgia, 

remarks  by,  254,  257,  266. 

Ohio,  ratified  by,  i69f. ;  ratifica- 
tion withdrawn,  i7of. 

Oregon,  ratified  by,  i67f. ;  ratifi- 
cation withdrawn,  168. 

Owen,  Robert  Dale,  plan  of,  65, 
67,  69,  70,  113,  135- 

Pendleton,  Geo.  H.,  remarks  by, 
150. 

Pennsylvania,  ratified  by,  I78f. ; 
amendment  debated  in,  I79ff. 

Phelps,  C.  E.,  remarks  by,  35,  83. 

Philadelphia  News,  quoted,  158. 

Picayune  (New  Orleans), 
quoted,  158. 

Pike,  F.  A.,  remarks  by,  98,  102. 

Pittsburg  Post,  quoted,  153. 

Poland,  L.  P.,  remarks  by,  91, 
123,  244. 

Pool,  Senator,  of  North  Caro- 
lina, remarks  by,  220. 

Post  (New  York),  quoted,  41, 
143. 

Pratt,  Senator,  of  Indiana,  re- 
marks by,  247,  267. 

Press,  views  of  the,  140-160. 

President,  see  Johnson. 

Raleigh    Sentinel,    quoted,    155- 

157. 
Randall,   S.  J.,   remarks  by,  78, 

134,  135- 
Randall,  W.  H.,  35. 
Raymond,  H.  S.,  remarks  by,  29, 

39,  77,  130. 


Read,  Mr.,  of  Kentucky,  re- 
marks by,  264. 

Reconstruction  Committee,  com- 
position of,  60;  Fourteenth 
Amendment  before,  60-68, 
93,  III;  report  of,  71-74. 

Representatives,  clause  provid- 
ing for  apportionment  of, 
97-127. 

Rhode  Island,  ratified  by,  176. 

Rice,  Mr.,  of  Illinois,  remarks 
by,  237. 

Rogers,  A.  J.,  remarks  by,  26, 78. 

Rousseau,  L.  H.,  remarks  by,  16, 
35- 

Sargent,  Mr.,  of  California,  re- 
marks by,   269,  270. 

Saulsbury,  Willard,  remarks  by, 
22,  25,  38,  90. 

Sawyer,  Senator,  of  South  Caro- 
lina, remarks  by,  251. 

Schenck,  R.  C,  remarks  by,  76, 
98,   103. 

Schurz,  Carl,  article  by,  149;  re- 
marks by,  220. 

Seward,  Secretary,  opinion  as  to 
Thirteenth  Amendment,  26. 

Shanklin,  G.  S.,  remarks  by,  76, 
129,   135- 

Sharkey,  Governor  of  Missis- 
sippi, quoted,  154. 

Shellabarger,  Samuel,  remarks 
by,  32,  2i6f.,  228. 

Sherman,  John,  remarks  by,  120, 
124,  149,  220,  245,  255f., 
258f. 

Slaughter  House  Cases,  cited, 
246,  265,  266,  268,  276 

Smith,  G.  C.,  remarks  by,  35. 

Smith,  Mr.,  of  Virginia,  272. 

South,  Attitude  of  the,  I54ff. ; 
see  also  the  several  States. 

South  Carolina,  ratified  by,  190; 
rejected  by,  202. 

Southern  leaders  to  be  dis- 
qualified from  holding  office, 
127-133. 

Spalding,  R.  P.,  remarks  by,  127. 

Stevens,  Thaddeus,  remarks  by, 
12,  38,  56,  60,  69,  70,  74,  75, 
98,  loi,  103,  104,  107,  III, 
113,  114,  116,  128,  129,  131, 
13s,  210. 

Stewart,  W.  M.,  remarks  by,  19, 
60,  119,  219,  269. 


Index 


285 


Stockton,  J.  P.,  remarks  by,  36, 
38-39,  220,  247f.,  268. 

Storm,  Mr.,  of  Pennsylvania,  re- 
marks by,  236f.,  273. 

Sumner,  Charles,  remarks  by, 
127,  218,  225,  250,  258,  264. 

Tennessee,  ratified  by,  i63ff. 
Texas,  ratified  by,  191 ;  rejected 

by,  191  f. 
Thayer,  M.  R.,  remarks  by,  27, 

75,  76,  116,  129. 
Thirteenth    Amendment,    views 

of,    26,   27,    185,   247;    text, 

278 
Thornton,  A.,  remarks  by,  17, 28. 
Thurman,    A.    G.,    remarks    by, 

219,  221,  2Sif.,  275,  276. 
Times  (New  York),  quoted,  41, 

43,  49,  147- 
Tribune    (New    York),    quoted, 

41,  147. 
Trumbull,   Lyman,   remarks   by, 

12,  14,  17-19,  21,  24,  37,  ^, 

148,  248. 
Tjmer,  Mr.,  of  Indiana,  remarks 

by,  242. 

Van  Winkle,  remarks  by,  22,  25. 
Vermont,  ratified  by,  168. 
Vickers,   Senator,   of   Maryland, 

remarks  by,  319 
Vicksburg  Herald,  quoted,  158. 


Vicksburg  Republican,  quoted, 
158. 

Virginia,  ratified  by,  191 ;  re- 
jected by,  202f. 

Wade,  Benjamin,  remarks  by, 
Z7,  88;  rebuked,  38 

War  Amendments,  text  of,  278f. 
Westminster,  Md.,  mass  meeting 

at,  opposed  the  Civil  Rights 

Bill,  44- 
Weston,   Geo.  W.,  letter  giving 

exposition    of    first    section, 

151- 

West  Virginia,  ratified  by,  172. 

Whaley,  K.  V.,  remarks  by,  39. 

Whipple,  E.  P.,  article  by,   149. 

Willard,  Mr.,  of  Vermont,  re- 
marks by,  242! 

Williams,  G.  H.,  remarks  by,  90, 
114. 

Wilson,  Henry,  remarks  by,  15, 
119,  124,  242. 

Wilson,  Jas.  F.,  remarks  by,  25, 

32,  34-  ^ 

Wisconsin,  ratified  by,  178;  re- 
port of  minority  committee 
on,   i76ff. 

Woodbridge,  F.  E.,  remarks  by, 
58. 

World  (New  York),  quoted,  41, 
42,  140. 


*^    OF  THE 

UNIVERSITY 

OF 


VITA. 

Horace  Edgar  Flack  was  born  at  Cuba,  Rutherford 
County,  North  Carolina,  May  14,  1879.  He  received  his 
elementary  education  in  the  public  schools  of  the  county 
and  at  the  Rutherfordton  Military  Institute.  He  entered 
Wake  Forest  College,  North  Carolina,  in  the  fall  of  1898 
and  received  the  degrees  of  Bachelor  of  Arts  and  Master 
of  Arts  in  1901.  He  was  Principal  of  the  Piedmont  Sem- 
inary, Lincolnton,  North  Carolina,  1901-02,  He  entered 
the  Johns  Hopkins  University  in  the  fall  of  1903,  where 
he  pursued  courses  in  Political  Science,  History  and  Po- 
litical Economy.  He  was  Fellow  in  Political  Science 
1905-06. 


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